Author, Dave Garcia, President, Rancho Mesa Insurance Services, Inc.

As expected, California Governor Newsom signed Senate Bill 1159 (SB 1159) into law Thursday, September 17, 2020 and it will have several impacts on workers’ compensation and the presumption of the claim. Below is an outline of some of the more important elements of SB 1159. In simple terms, just remember three numbers, 4/4/14 - I’ll explain, later. Additionally, these rules will continue, unless modified, until January 2023. So, SB 1159 may be around for a while.

If an “outbreak” occurs, for the presumption of the claim to rest with the employer (meaning it will be presumed the person testing positive for COVID-19 contracted it at work and is therefore eligible for workers’ compensation benefits), there are several factors that need to be meet for that to occur.

If the employer has fewer than 100 employees and 4 employees test positive, or if the employer has more than 100 employees and 4% of their total employees test positive, during a 14-day period at an employer’s specific location, the COVID-19 case is presumed to be work-related. Thus, the 4/4/14 rule. When in doubt, call your workers’ compensation carrier and discuss the specific situation. They will help you determine whether or not it is a workers’ compensation claim. 

Rob Darby, President of Berkshire Hathaway Homestate Companies, the second largest writer of workers’ compensation insurance in California and I discuss SB 1159 in a recent StudioOne™ Safety and Risk Management Network podcast episode “SB 1159 Impacts Workers' Comp Market.” A week before Governor Newsom signed the bill, Rob and I discussed the impacts of the bill to get an early insight. Take a listen - I think you will find it useful.

Now comes possible confusion with SB 1159. What is considered an outbreak? What is the definition of a specific location?

Outbreaks

The section of the law (Labor Code 3212.88) applies to any employee other than frontline workers and healthcare workers who test positive during an “outbreak” at the employer’s place of business, if the employer has 5 or more employees.

COVID-19 is presumed work-related if an employee worked at the employer’s place of business at the employer’s direction on or after July 6, 2020 and both the following elements are met:

• The employee tested positive for COVID-19 within 14 days after working at the employer’s location.

• The positive test occurred during an “outbreak” at the employer’s specific location.

An “outbreak” is defined as a COVID-19 occurrence at a specific employment location within a 14-day period AND meets one of the following:

• If an employer has 100 employees or less at a specific location and 4 or more employees test positive for COVID-19;

• If an employer has more than 100 employees at a specific location and 4% of the employees test positive for COVID-19;

• The local public health department, State California Department of Public Health or Occupational Safety and Health Administration (Cal/OSHA) or school superintendent orders the specific place of employment to close due to risk of COVID-19 infection.

A specific location or place of employment is a building, store, facility or agricultural field where an employee performs work at the employer’s direction. An employee’s home is not considered a specific place of employment unless the employee provides home health care services to a client at the employee’s home. An employee may have more than one specific place of employment, if they worked in multiple locations within the 14-day period before their positive test.

There is a 45-day timeframe to determine if a positive COVID-19 case meets the above standard.

Outbreak Reporting Requirements

When an employer knows or reasonably should know that an employee has tested positive for COVID-19, they must report the incident to their workers’ compensation carrier.  They should be prepared with the following information to give the carrier.

• The fact that an employee has tested positive, regardless if work-related or not.

• Employers should not include any personal information regarding the employee who tested positive for COVID-19 unless the employee asserts it is work-related or files a claim form.

• The date the specimen was collected for the employee’s COVID-19 test.

• The specific address or location of the employee’s place(s) of employment during the 14-day period preceding the date the test specimen was collected.

• The highest number of employees who reported to work at the specific location(s) in the 45-day period before the last day the COVID-19 positive employee worked there.

It best practices to follow all local, state and federal guidelines for safe workplaces. However, even with the best intentions and precautions, COVID-19 may accidentally spread to employees. Again, when in doubt, report an employee COVID-19 case to your workers’ compensation carrier and allow them to determine how to proceed.

For questions about SB 1159 and how it with affect your organization’s workers’ compensation, contact your broker or reach out to Rancho Mesa at (619) 937-0164.