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California’s New COVID Work Comp Presumption Law

September 21, 2020

On September 17, 2020, California Governor Newsom signed into law SB 1159. There are three main parts to the bill. We want to bring your attention to Part 3, the addition of Labor Code 3212.88, and the reporting requirements the law creates.

Part 3 – The addition of Labor Code 3212.88

This part grants a rebuttable presumption for all workers, other than healthcare and emergency workers, who work outside of home and test positive for COVID-19 between 7/6/20-1/1/23 if there is an “outbreak” at their “specific place of employment” at the time they tested positive. “Outbreak” is defined as follows:

  • If there are 100 employees or fewer at a “specific place of employment,” there is an “outbreak” if 4 or more employees at that same “specific place of employment” have tested positive within a 14 calendar day period.

  • If there are more than 100 employees at a “specific place of employment,” there is an “outbreak” if 4% or more employees at that same “specific place of employment” have tested positive with a 14 calendar day period.

  • Notwithstanding the above, there is also an “outbreak” if a “specific place of employment” is ordered to be closed by a public health department. “Specific place of employment” is defined as the building, store, facility, or agricultural field where an employee performs work at the employer’s direction. A specific place of employment does not include the employee’s home or residence, unless the employee provides home health care services to another individual at the employee’s home or residence.

The law requires you to notify your claims administrator (Strategic Comp) of every known positive COVID case regardless of whether or not you or the employee believes it is work-related.

Here's what to do:

  • Employee notifies you that he/she tested positive and asserts that he/she contracted the virus from work and would like to file a work comp claim: File a work comp claim immediately (use the same process as you would use to file any work comp claim).

  • Employee tests positive for COVID, and doesn’t say it is work-related nor asks to file a work comp claim: Complete and send this PDF to within 3 days of learning that the employee tested positive. Please note, when you send us notification of a positive test for an employee who is not asserting a work comp claim, it is important that you not reveal the employee’s identity to us.

  • The law also requires you to report positive tests retrospectively. If you have any employees who tested positive for COVID between 7/6/20 and 9/17/20 but for whom a WC claim or RPO was not previously filed, notify by October 17 as required by the law.

Important Notes:

  • As stated above, do not give us the employee’s name unless the employee has asserted that the infection is work-related.

  • The information we are collecting is not only required by law, but will potentially help us defend work comp claims, should they be brought in the future.

  • There are Federal, State, and City Supplemental Sick Leave Laws that may pay before work comp benefits. It’s important to make sure your employees know what is available to them to prevent a work comp claim from unnecessarily being filed.

  • When an employee tells you that they have tested positive for COVID-19, it is essential that they provide you with medical documentation from a doctor that confirms the positive diagnosis. Please ask them for the documentation, record the date you requested it, as well as the date of its receipt. Please maintain the documentation in the employee’s personnel file.

  • SB 1159 also allows us to rebut the presumption that an employee contracted COVID-19 at work. One way to challenge such a claim is to show evidence of measures in place to reduce the potential transmission of COVID-19 in the employee’s place of employment. If you have not already done so, we urge you to visit Cal/OSHA’s website to review measures that you can take to reduce COVID-19 exposure at your business. Look for more information soon on best practices.

Download the Reporting Form