Article written by Gabriela Lamond, Associate Attorney, Chase Law Group, P.C.

SB 1159 became effective on September 17, 2020 and created three (3) different rebuttable presumptions with respect to an employee’s claim that he/she contracted COVID-19 at the workplace.  The third presumption, which only applies to employers with five (5) or more employees, also imposes additional employee tracking and reporting requirements. Additionally, SB 1159 requires that employees must exhaust any special COVID-19 related sick leave benefits before receiving any temporary disability benefits, however, employees are not required to exhaust any regular sick leave benefits.

1. March 19 – July 5, 2020 Rebuttable Presumption

The first rebuttable presumption is codified in Section 3212.86 of the Labor Code. This section applies only to work from March 19, 2020 through July 5, 2020, and creates a rebuttable presumption that an employee has contracted COVID-19 in the course of employment if all of the following qualifications are met:

• (A)  Applies to work form March 19, 2020 through July 5, 2020;
• (B)  Employee is diagnosed with or tests positive for COVID-19 within 14 days of performing labor or services at the employee’s place of employment; and
• (C)  Employee performed labor or services at the employee’s place of employment at the employer’s direction.
  • A place of employment does not include an employee’s residence.

The employer may attempt to dispute this presumption by presenting evidence to the contrary. Unless disputed by the employer, the appeals board is bound to find in accordance with the presumption.

2. First Responder & Health Care Worker Rebuttable Presumption

The second rebuttable presumption is codified in Section 3212.87 of the Labor Code.  This section applies only to COVID-19 injuries for first responders and health care workers that occurred on or after July 6, 2020.

The job functions that this presumption applies to are specifically enumerated in subsection (a)(1) – (11) of Section 3212.87, but generally include the following labor/services: active firefighters, peace officers, emergency rescue personnel (EMTs and paramedics), registered nurses, employees who provide direct patient care, or a custodial employee in contact with COVID-19 patients who work at a health facility, employees who provide direct patient care for a home health agency, employees of health facilities, and providers of in-home supportive services when such in-home supportive services are performed outside of such employee’s own home or residence.

If you have questions about whether or not you or your employees may qualify for this rebuttable presumption, please feel free to contact our office.

Section 3212.87 creates a rebuttable presumption for those certain first responders & health care workers enumerated in subsection (a)(1) – (11), that the employee contracted COVID-19 in the course of employment if all of the following qualifications are met:

• (A)  Employee tests positive for COVID-19 on or after July 6, 2020;
• (B)  Employee has received a positive COVID-19 Polymerase Chain Reaction test approved for use by the FDA within 14 days of performing work at the place of employment; and
• (C)  Employee performed labor or services at the employee’s place of employment at the employer’s direction.
  • A place of employment does not include an employee’s residence

The employer may attempt to dispute this presumption by presenting evidence to the contrary. Unless disputed by the employer, the appeals board is bound to find in accordance with the presumption.

3. Workplace Outbreak / Employers with Five (5) of More Employees Rebuttable Presumption

The third rebuttable presumption is codified in Section 3212.88 of the Labor Code. This section only applies to employers with five (5) or more employees, and creates a rebuttable presumption that an employee contracted COVID-19 in the course of employment if all of the following qualification are met:

• (A) Employee’s employer has five (5) or more employees;
• (B) Employee tests positive for COVID-19 on or after July 6, 2020;
• (C) Employee has received a positive COVID-19 Polymerase Chain Reaction test approved for use by the FDA within 14 days of performing work at the place of employment;
• (D) Employee’s positive test occurred during an “outbreak” at the employee’s specific place of employment; and
• (E)  Employee performed labor or services at the employee’s place of employment at the employer’s direction.
  • a. A place of employment does not include an employee’s residence.

An “outbreak” has occurred if within 14 calendar days one of the following occurs at a specific place of employment:

• If greater than 100 employees at a specific place of employment 4% of employees who reported to the specific place employment test positive for COVID-19.
• If equal to or less than 100 employees at a specific place of employment, four (4) employees test positive for COVID-19.

The employer may attempt to dispute this presumption by presenting evidence to the contrary. Unless disputed by the employer, the appeals board is bound to find in accordance with the presumption.

Additionally, employers with five (5) or more employees will also need to comply with the following tracking and reporting requirements:

Employee Tracking

Employers with five (5) or more employees must accurately track the number of employees working at each of the employer’s “specific place of employment” on each day.

A “specific place of employment” means the building, store, facility or agricultural field where an employee performs work at the employer’s direction, and does not include an employee’s home or residence.

In the event an employee performed work at multiple places of employment for the employer within 14 days of an employee’s positive test, the employee’s positive test shall be counted for the purpose of determining whether an “outbreak” has occurred at each of those places of employment. If an “outbreak” exists, then that shall be considered the employee’s “specific place of employment.”

Employer Reporting

When an employer with five (5) or more employees knows or reasonably should have known that an employee received a positive COVID-19 Polymerase Chain Reaction test approved for use by the FDA (does not include a serologic / antibody testing), the employer must report the following information to its claims administrator:

• An employee tested positive*
  • *The employer shall not include any personally identifiable information regarding the employee who tested positive, unless the employee asserts infection is work related or has filed a claim form pursuant to Section 5401 of the Labor Code.
• The date the employee tested positive, which is the date the specimen was collected
• Specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test
• The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.*
  • *If an employer is aware of an employee testing positive between July 6, 2020 and September 16, 2020, then the employer shall instead report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020 and September 16, 2020.

For positive tests between July 6, 2020 and September 16, 2020, employers should have reported the required information to their claims administrator by October 29, 2020. For positive tests on or after September 17, 2020, the employer must report this information to their claims administrator within three (3) business days.

An employer who fails to report or intentionally submits false or misleading information or fails to submit information when reporting the required information is subject to a civil penalty to be assessed by the Labor Commission, in the amount up to $10,000.  For clarity, this statute only applies to employers with five (5) or more employees, and the employer is not required to report any information if no test was performed or only an antibody test was performed.

Have questions?  We can provide answers. Contact the team at Chase Law Group P.C.