Yes. The California Department of Labor has indicated that an employee may be eligible for Workers’ Compensation If they are unable to do their usual job because they were exposed to and contracted COVID-19 during the regular course of their work. Workers’ Compensation law would allow an employee access to medical treatment as well as wage replacementOn May 6, 2020, Governor Newsom issued Executive Order N-62-20 to clarify the avaibility of workers' compensation benefits for COVID-19 related illness. The Order also created a rebuttable presumption that the illness arose in the course of the employment for purposes of awarding workers’ compensation benefits. The presumption expired on July 5, 2020. For the presumption to apply, all of the following conditions must have been present:
- The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employers direction;
- The day of employment was on or after March 19, 2020;
- The employee’s place of employment was not the employee’s home or residence; and
- The diagnosis of COVID-19 was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
Following the expiration of Executive Order N-62-20, the Legislature passed SB 1159, which codified the terms of the executive order into statute. SB 1159 establishes a rebuttable presumption that certain first responders and healthcare workers who get sick or injured due to COVID-19 after June 6, 2020, did so in the course of their employment for purposes of awarding workers' compensation benefits. The presumption will apply until January 1, 2023.
The rebuttable presumption applies to covered first responders and healthcare workers whose employers have five or more employees, and who test positive for COVID-19 during an "outbreak" at their specific workplace. SB 1159 adopts a complex analysis to determine whether a COVID-19 "outbreak" has occurred. According to a summary from the Department of Industrial Relations, an "outbreak" exists if within 14 days, one of the following occurs at a specific place of employment:
- Four employees test positive if the employer has 100 employees or fewer;
- 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
- 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.
Under SB 1159, for injuries that occurred on or after July 6, 2020, the employee must test positive utilizing a PCR (Polymerase Chain Reaction) test approved for use or approved for emergency use by the United States Food and Drug Administration (U.S. FDA) to detect the presence of viral RNA. The employee may also utilize any other viral culture test approved for use or approved for emergency use by the U.S. FDA to detect the presence of viral RNA which has the same or higher sensitivity and specificity as the PCR Test. The employee may not rely on serologic testing, also known as antibody testing.
This bill 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. Specifically, when an employer "knows or reasonably should know" that an employee has tested positive for COVID-19, it must report the information below to its workers' compensation claims administrator within three business days:
- That an employee has tested positive;
- The date that the employee tested positive, which is the date the specimen was collected for testing;
- The specific address or addresses of the employee's place of employment during the 14-day period preceding the positive test; and
- The highest number of employees who reported to work in the 45-day period preceding the last day the employee worked at the place of employment.
Importantly, SB 1159 contains a retroactive requirement that covered employers to go back and report any positive tests (and the same information above) to their claims administrator dating back to July 6, 2020. For more information on SB 1159, visit the Department of Industrial Relations' SB 1159 Frequently Asked Questions website.
For more information about COVID-19 and Workers' Compensation, visit the California Division of Workers Compensation.