Earlier this year in response to COVID-19, Governor Newsom issued Executive Order N-62-20, which created a rebuttable presumption that for certain employees who suffer illness or injury from COVID-19 will be presumed to have contracted the virus in the course and scope of employment for purposes of receiving workers’ compensation benefits.
On September 17, 2020 and effective immediately, the California legislature passed SB 1159 which extends the presumption for certain classes of workers and imposes new notice requirements on employers. The presumption exists for employees who suffer illness, injury, or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023.
The Presumption
For employees who are diagnosed with COVID-19 between March 19 through July 5, 2020, there is a presumption of Workers’ Compensation coverage and if the claim is not denied within 30 days, it is presumed compensable. Otherwise, the presumption can only be rebutted by evidence that is discovered after the 30-day deadline.
Additionally, the new law adds rebuttable presumptions for employees who contract COVID-19 on or after July 6, 2020 who are: (1) first responders and health care professionals who test positive within 14 days after their last day of work; or (2) all other employees who test positive during an “outbreak” at the employee’s worksite and the employer has five or more employees.
Rebutting the Presumption
An employer and claim administrator will need to work very quickly to gather evidence to dispute the presumptions. If the date of injury is before July 6, 2020, the claim administrator has 30 days to deny the claim or the injury is presumed compensable. If the date of injury is on or after July 6, 2020, the claim administrator has 45 days to deny the claim, or the injury is presumed compensable.
If the claim is not denied or the decision is not timely made, the presumption is only rebuttable by evidence discovered after the initial 45-day period. Evidence that can rebut the presumption include factors such as:
(1) employer’s efforts to reduce potential workplace transmission of COVID-19;
(2) evidence of an employee’s other risk factors; and
(3) non-occupational risks of COVID-19 infection such as an employee’s activities outside of the workplace.
What Benefits Are Employees Entitled to?
If the presumption applies, employees are entitled to “full hospital, surgical, medical treatment, disability indemnity, and death benefits,” unless the deceased employee did not have any dependents.
If an employee is eligible for paid sick leave benefits such as those that are available under Families First Coronavirus Act (FFRCA), those benefits must be exhausted before the employee can use any temporary disability benefits. However, if there are no sick benefits available to employees, then the employer must provide employees with temporary disability benefits without the traditional three-day waiting period.
What Employees Must Provide Their Employer
To qualify for temporary disability, an employee must satisfy either of the following:
- In the event the employee tests positive or is diagnosed with COVID-19 on or after May 6, 2020, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
- In the event the employee tests positive or was diagnosed with COVID-19 before May 6, 2020, the employee must have obtained a certification, no later than May 21, 2020, documenting the period for which the employee was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
New Reporting Requirements
Additionally, the new law requires all employers with five or more employees to provide their workers’ compensation carrier with information about any employees who test positive for COVID-19 from July 6, 2020 within the next thirty (30) days.
Moving forward, employers must also notify to their workers’ compensation carrier within three days of learning that an employee has tested positive for COVID-19. The employer must provide the date of the test, the employee’s worksite 14 days prior to the test, the number of employees at each work site where the employee worked 45 days prior (personal identifying information is excluded).
The claims administrator will use the above information to determine whether an outbreak has occurred. Following these reporting requirements is crucial as there is a penalty of $10,000 for an employer that “intentionally submits false or misleading information or fails to submit information.”
What is an “Outbreak”?
An outbreak is defined for employers with 100 or fewer employees as 4 employees testing positive with PCR tests within a 14-day period, or for employers with more than 100 employees, 4 percent of the employees testing positive in such a period. Also, an outbreak is deemed to have occurred if the employer is closed by a local health department, OSHA or a school superintendent due to risk of COVID-19 infection.
REVISIONS TO DOL REGULATIONS ON FFCRA
The Labor Department posted revisions to regulations that implements paid sick leave and expands family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA).
Some of the key changes and clarifications included in these revisions are:
- Reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- Reaffirms and provides additional explanation for the requirement that an employee has to have employer approval to take FFCRA leave intermittently when (1) the employee is taking leave to care for their child whose school, place of care, or child care provider is closed or unavailable due to COVID-19; (2) the employee’s or family member’s serious health condition requires it and is certified by a health care provider; or (3) a qualifying exigency related to service in the Armed Forces.
- Revises the definition of “healthcare provider” to only include employees who are health care providers under the Family and Medical Leave Act regulations or are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- Clarifies that documentation to support FFCRA leave does not need to be provided prior to taking leave but should be provided “as soon as practicable.” Accordingly, employers should not require supporting documentation to be provided before FFCRA leave and should give employees reasonable time to provide such documentation.
- Corrects an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave (EFMLA) to their employers. The original language of the regulations stated that employers could not require advance notice of the need for EFMLA. Rather, for both, notice could be required only on or after the first day of leave taken. The Department revised the regulation so that the “only after” language applies solely to Emergency Paid Sick Leave (EPSL). It further added that to take EFMLA, an employee must provide notice “as soon as practicable,” which is before the first day of leave begins if the need for EFMLA is foreseeable.
