There have been many questions regarding whether essential workers can file for workers’ comp due to COVID-19 related issues. While the American Rescue Plan Act of 2021 helps federal workers diagnosed with the disease to get coverage under the Federal Employees’ Compensation Act (FECA), each state has its own policy regarding workers’ compensation. The answer to whether workers’ comp covers COVID-19 has been complicated, as most community-spread illnesses aren’t tied directly to the workplace.
However, California Governor Gavin Newsom recently signed legislation that establishes a workers’ compensation presumption that applies to most state employers. If an employer were to have a COVID-19 outbreak, it’s likely worker infections would be covered.
About SB 1159
With SB 1159, the burden of proof was shifted. Covered workers who contract the virus are presumed to have at work unless their employer can prove otherwise. Any employee who worked outside of their home during the statewide shelter-in-place order must present medical evidence that an illness/injury was related to work. This means some reasonable factual basis must be established that asserts their workplace directly contributed to their illness.
Previously, to qualify for benefits, California’s workers’ comp system required employees to present evidence of a medical nature to show their illness or injury is directly related to their job. The executive order instead makes it automatically presumed an illness is work-related if they contracted COVID-19 during the period of time specified under the order. If they meet provisions outlined by the law, an employee would not have to provide any further proof of how or where they were infected.
However, the original executive order expired on July 5, further complicating matters should an employee become ill thereafter and require time off work.
Does SB 115 Apply to Essential Workers and Health Care Workers?
A rebuttable presumption was established by SB 1159 for instances where certain first responders and health care workers contract COVID-19. To apply from July 6 until January 1, 2023, it covers health facility employees who provide direct patient care (nurses, EMTs, etc.) or custodial services. Others covered include employees of home health agencies as well as firefighters and peace officers.
However, the presumption doesn’t apply if the employer can prove the worker didn’t come in direct contact with a patient or anyone else on the job who tested positive for the virus.
How Does the Law Define an “Outbreak”?
The new state law includes a complex outbreak analysis. For coverage to be available, an outbreak must occur. This has made the law complex to implement and administer. The definition it provides of an outbreak is as follows:
- Businesses with 100 or fewer employees: Four employees must test positive within a two-week period.
- Businesses with more than 100 employees: At least 4% of employees test positive within a two-week period.
- Orders by public authorities: If authorities have ordered the place of employment to close due to risk of infection.
How Are Employees Required to Report Outbreaks?
Employers must now report when they “know or reasonably should know” an employee has tested positive for COVID-19. It must report this fact to the workers’ compensation claims administrator within three business days. The date of a positive test result, and the address of the employee’s place of employment in the 14 days preceding a positive test, must be reported. Additionally, employers must indicate the highest number of employees who reported to work during the 45 days before the last day the infected employee worked there.
Employers must report any positive tests dating back to July 6 by no later than October 17.
Contact the Law Offices of Jacob Emrani
Workplace COVID-19 reporting requirements are now quite strict and there are some complex procedural changes with SB 1159. If you’ve tested positive and believe you contracted the virus at work, allow our Los Angeles workers’ comp attorney to review the facts of your case and apply any aspects of state law that can get you the compensation you deserve. To learn more or set up a free consultation, call 888-952-2952 today.