Employers Beware

Many workers are returning to the office for the first time since the Covid-19 pandemic began. This leaves employers not only with the job of protecting their workers, but also with the need to keep up on the incredibly fast pace of changing laws and assumptions regarding workers compensation and Covid-19. In the past, it was incredibly difficult for most employees to obtain workers compensation benefits for infectious diseases. However, executive orders and state laws have made it much easier to qualify for workers' comp if you get COVID-19 while working.

New Bill - SB 1159

Many employers are still under the assumption that all Covid-19 cases in the state fall under workers compensation. This was the presumption in March of 2020 made by executive order N-62-20 of Gavin Newsom.[1] Under this executive order, if an employee tested positive within 14 days after being at an employer's workplace between March 19 and July 5, 2020, they were entitled to a presumption that the illness was work related unless the employer or its insurer could prove otherwise.[2] However, this is no longer the case.

As the four-month period expired, the California Legislature carved out a new and narrower bill. SB 1159 changed many of these presumptions and employers should be aware of them. Now, only employees in two clearly codified situations may still receive workers compensation benefits including payments for medical care and all lost income during their recovery periods.[3] Employers must be aware of this bill as it will remain in effect through January 1, 2023.[4] The two select groups that are still eligible for Covid-19 workers compensation benefits are high risk jobs and workplaces that experience outbreaks.[5]

Two Groups Eligible for Workers Compensation

1. First Responders/Health Care Workers

The first group who maintains the powerful assumption of workplace contraction are first responders and health care workers.[6]  This group is inclusive of the following

• Active firefighting members of specified fire departments or units
• Peace officers
• Fire and rescue services coordinators who work for the Office of Emergency Services
• Employees who provide direct patient care or custodial employees in contact with COVID-19 patients who work for designated health facilities
• Paramedics and emergency medical technicians
• Employees providing direct patient care for a home health agency
• Providers of in-home supportive services 
• Other employees of designated health facilities.

Employees who qualify for this presumption, must use all sick leave benefits made available in response to COVID-19 before they collect temporary disability benefits.[7] However, if the employee in this category does not have access to any coronavirus-related sick leave or has depleted their remaining leave, the normal three-day waiting period for temporary disability won't apply.[8]

2. Workplaces with COVID-19 Outbreaks

While the majority of workplaces do not involve the employment of healthcare workers or first responders, they may still fall under the “outbreak” exception.[9]  Employees whose employers have five or more employees, and who test positive for COVID-19 during an outbreak at their specific workplace still qualify for the presumption under SB 1159.[10]

An outbreak exists if: Within 14 days one of the following occurs at a specific place of employment:

1. Four employees test positive if the employer has 100 employees or fewer;
2. Four percent (4%) of the number of employees who reported to the specific place of employment test positive if the employer has more than 100 employees; or
3. A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection of COVID-19.

As with first responders, employees under the second umbrella are required to exhaust any available coronavirus-related sick leave before they may collect temporary disability benefits under this law.[11]

Protecting Your Workplace

Here are 3 wise steps employers should take to avoid liability under both exceptions.

1. Report All Cases!

SB 1159 imposes reporting requirements on employers for purposes of the outbreak presumption. Specifically, “when an employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report certain information to its claims administrator.”[12] Failure to follow this rule may subject your business to civil penalties of up to $10,000 for intentionally falsifying information or failing to report required information.[13] 

2. Policy, Plan, Track, and Trace

Unlike the health care and first responder cutout, employers that may fall under the Outbreak presumption situations can take positive action to present the presumption from being applied to them. Employers should actively implement plans and policies that require employees to work from home who are feeling under the weather, even if they have not received a positive test yet.  Allowing these employees to miss a half day of work to receive a negative test could save your business excruciating paperwork and fines in the long run.

On top of formulating an “under the weather” work from home policy, every workplace should take measures to minimize the risk of employee to employee spread. This might include spacing out desks or increasing airflow to the office.

Tracking and tracing is also recommended and nipping an outbreak in the bud could prevent your business from crossing over the 4 employee or 4% threshold described above. Employees who are exposed to a known case should be advised to work from home or receive a negative test before returning to work.

3. Keep Employees Informed

Even if you feel that your business does not fall under either of the presumptions described above, an employee may still file a Covid-19 workers compensation claim. As such, employers are still required to submit the claim to insurance and keep them notified of the acceptance or denial of their claim by letter under the law.

What Should You Do?

While it is impossible to completely protect your business in this crazy climate, there are many steps you can take to hedge against risk. This includes staying informed on the status of laws like SB 1159 that may affect the daily operation of your business.

At Tyler Law we are actively advising many businesses on the complexities of Covid-19 in the state of California. This includes litigation and advisory surrounding employee issues involving the Covid-19 pandemic. If you or your organization feel the need for advisory or council, please contact us.