Further Covid-19 Protections For Workers During The Pandemic

Our state government has been hard at work implementing new laws related to COVID-19 in the workplace as it relates to Workers’ Compensation benefits. “Protecting workers is critical to slowing the spread of this virus,” said Newsom. “These two laws will help California workers stay safe at work and get the support they need if they are exposed to COVID-19.”

Rebuttable Presumption of COVID-19 Exposure

Senate Bill (SB) 1159 was signed into law by Governor Newsom on September 17, 2020, codifying the executive order he signed on May 2, 2020. This creates a rebuttable presumption that California’s essential employees who contract COVID-19 in the workplace, if certain requirements were satisfied, making them eligible for workers’ compensation benefits. Senate Bill 1159 is effective immediately and expands on those initial provisions to help maintain the integrity of our workplaces.

The effect of this is that it will be presumed that certain workers who contact COVID-19 did so in the work place unless the employer can present evidence to the contrary. This evidence may include any measures the employers have in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.

SB 1159 provides three ways by which COVID-19 could be presumed to be caused by work:

• The initial portion of SB 1159 is specific to and makes law the Executive Order signed by Governor Newsom earlier this year. This applies to employees exposed to the virus at their place of employment between March 19, 2020 and July 5, 2020.
• The second portion of this bill applies only to frontline workers such as peace officers, firefighters and certain health care workers who test positive within 14 days of being exposed at work between July 6, 2020 and January 1, 2023. If this is the case, the virus is presumed to have occurred as a result of the employment. This section also requires claims be accepted or rejected by the employer within 30 days or they are presumed to be compensable unless further evidence to the contrary is discovered after this time period.
• Finally, SB 1159 includes provisions related to all other California employees (not frontline workers) whose employer has 5 or more employees. This states that if an employee tests positive during a period of an “outbreak” of COVID-19 at the employee’s specific place of employment, it is presumed to have occurred in the course of employment. An “outbreak” depends on the number of employees at the claimant’s place of work or if the workplace is closed by the government based on an outbreak. This portion of the bill requires these types of claims be accepted or rejected within 45 days or they are presumed to be compensable, again, unless evidence showing otherwise is discovered.

About 28 percent of all (not just essential worker) COVID-19 claims filed were denied in May, but that denial rate dropped to 20 percent in July and is on track to decline to nearly 10 percent in August, according to state data. Therefore, it is important for workers who believe they contracted COVID-19 as a result of their employment to contact a knowledgeable Workers’ Compensation attorney to discuss their specific situation. If none of the above situations apply, you may still be able to assert a non-presumptive claim for a Workers’ Compensation for work-related COVID-19 if there is evidence that you were exposed at work. Attorneys at Mastagni Holstedt are available to discuss the specifics of your claim with you.

Employer Reporting Requirements

In addition to SB 1159, Governor Newsom signed Assembly Bill (SB) 685 into law. This requires employers to timely notify employees, as well as public health officials of COVID-19 cases in the workplace.

Although Workers’ Compensation claims related to COVID-19 began in January 2020 and are continuing, they spiked during the months of June and July according to the California Department of Industrial Relations. By the end of August 2020, health care workers comprised nearly 40 percent of all COVID-19 claims, while public safety and other government workers, retail employees and manufacturing workers collectively made up another 30 percent of claims.

Further Developments

To keep abreast of developments in this area as they affect the rights of injured employees, Mastagni Holstedt is also monitoring two additional COVID-19 related bills: AB 196 and AB 664.

• AB 196: This bill would apply to injuries occurring on or after March 1, 2020 with no end date. It would create a disputable presumption, as specified above, that the injury arose out of and in the course of the employment, and would extend that presumption following termination of service for a period of 90 days, commencing with the last date actually worked. The bill would also shorten the investigatory timeframe for denial or presumed acceptance of a claim to 30 days, rather than 90 days.
• AB 664: This bill also allows for a rebuttable presumption work-pace exposure for peace officers, fire fighters and health care employees providing direct patient care in an acute care hospital who are diagnosed with or test positive for COVID-19 after January 1, 2020. Additionally, this bill does require an employer to provide emergency equipment or personal protective equipment to these employees, rather than to have the option to reimburse the employee for their own purchases. Additionally, this bill extends the presumption to July 1, 2024.

Free Consultation

Workers’ Compensation benefits may include medical treatment, temporary disability (or salary continuation under Labor Code section 4850 for public safety), permanent disability, and/or dependency death benefits. Each claim is unique and may require other requirements to be met.
If you are someone you know has tested positive or was diagnosed with COVID-19 within 14 days of performing labor or services at the employee’s place of employment, and needs help with this fight, please contact Mastagni Holstedt for a free consultation with an advocate who supports what you do for our communities and who will fight this legal battle with you.