CORONAVIRUS (COVID-19) AND WORKERS’ COMPENSATION INSURANCE

Over the past 40 years, Larson, Larson & Dauer (Previously Timothy A. Larson, ALC), has had significant success and notoriety, in representing those hard-working employees, who are repeatedly exposed to toxins and other carcinogens, at their place of employment. This will soon include those employees that suffered injuries from coronavirus (COVID-19).

Workers' compensation is a very limited system only intended to provide benefits to those employees injured during the course and scope of their employment. Please understand that workers’ compensation is only one of many types of insurance that you might have. However, this type of insurance is provided by your employer for physical and/or psychological injuries that you sustain from work. In California, workers' compensation is generally speaking a no-fault system. This means that an injured employee is eligible for workers' compensation even if the employer is not negligent.

Due to the coronavirus (COVID-19) issue being new to the workers’ compensation system, there are regular updates. Please always review the CDC Website, as well as the State of California COVID-19 for the most up to date information.

COVID -19 REBUTTABLE PRESUMPTION CREATED

This means that it is the employer’s burden to show that the injured worker was exposed and infected with COVID-19 outside of the workplace. This is in contrast, to the majority of workers’ compensation claims that place the burden on the injured worker, to show that the injury occurred as a result of their workplace.

California Legislature Passes Bill Establishing Rebuttable COVID-19 Presumption

On Aug. 31, 2020, the last day of the 2020 California legislative session, the California Legislature passed Senate Bill 1159 (SB 1159), which establishes a rebuttable presumption that illness or death resulting from COVID-19 arose out of and in the course of employment for specified employees. Although multiple COVID-19 presumption bills were introduced this year, only SB 1159 had enough support to be passed. Gov. Gavin Newsom has until Sept. 30 to sign or veto the bill. Because SB 1159 was the only COVID-19 presumption passed, there is no reason to believe it won't be signed. SB 1159 was passed as an urgency statute, meaning it will take effect immediately upon signing.

SB 1159 adds three new Labor Code sections that establish COVID-19 presumptions. Labor Code § 3212.86 codifies Newsom's Executive Order (N-62-20), which created a temporary presumption for employees working from March 19, 2020 through July 5, 2020.^[1] In addition, two new statutes create presumptions for COVID-19 injuries on or after July 6, 2020 –– § 3212.87 applies to front-line workers (peace officers, firefighters, health-care providers, home care workers and IHSS workers), and § 3212.88 applies to employees who contract COVID-19 due to a workplace outbreak. Significantly, SB 1159 also establishes reporting requirements requiring employers and claims administrators to review possible claims retroactively and assess whether those employees are entitled to the presumption.

The presumptions remain in effect until Jan. 1, 2023, and as of that date would be repealed. The text of SB 1159 is available on the California Legislative Information website.

LABOR CODE § 3212.86 - CODIFICATION OF EXECUTIVE ORDER

LC 3212.86 generally codifies Gov. Newsom's Executive Order (N-62-20), although there are some minor differences. It provides that an illness or death related to COVID-19 is presumptively compensable if all of these are established:

The employee performed labor or services at the employee’s place of employment at the employer’s direction between March 19, 2020 and July 5, 2020.
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 employer’s direction.
The place of employment was not the employee’s residence.
if the employee was diagnosed with COVID-19, the diagnosis was done by a licensed physician and surgeon holding an M.D. or D.O. degree or state licensed physician assistant or nurse practitioner, acting under the review or supervision of a physician/surgeon pursuant to standardized procedures or protocols within their lawfully authorized scope of practice, and that diagnosis is confirmed by testing or by a COVID-19 serologic test within 30 days of the date of the diagnosis.

Unlike the executive order, § 3212.86 allows COVID-19 to be diagnosed not only by a licensed physician and surgeon, but also by a properly supervised state licensed physician assistant or nurse practitioner.

The presumption may be rebutted by "other evidence" without limitation. An employer must deny liability for a claim of an illness related to COVID-19 within 30 days after the date on the claim form. Otherwise, the illness will be presumed compensable and the presumption will be rebuttable only by evidence discovered subsequent to the 30-day period.

The employee may be awarded all regular workers' compensation benefits under § 3212.86, including full hospital, surgical, medical treatment, disability indemnity and death benefits. If an employee has paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5 or LC 4850 are due and payable. If an employee does not have those sick leave benefits, temporary disability benefits or § 4800, § 4800.5 or § 4850 benefits must be paid from the date of disability.

To qualify for temporary disability or § 4800, § 4800.5 or § 4850 benefits, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified every 15 days for the first 45 days following the diagnosis.

LABOR CODE § 3212.87 – PRESUMPTION FOR FRONT-LINE WORKERS

LC 3212.87 establishes a COVID-19 presumption for front-line workers. Specifically, it covers:

active firefighting members, whether volunteers, partly paid or fully paid, of all of these departments:
1. a fire department of a city, county, city and county, district or other public or municipal corporation or political subdivision;
2. a fire department of the University of California and the California State University;
3. the Department of Forestry and Fire Protection (Cal Fire);
4. a county forestry or firefighting department or unit;
active firefighting members of a fire department that serves a U.S. Department of Defense installation and who are certified by the U.S. Department of Defense as meeting its standards for firefighters;
active firefighting members of a fire department that serves a National Aeronautics and Space Administration (NASA) installation and who adhere to specified training standards;
active firefighting members of a fire department that provides fire protection to a commercial airport regulated by the Federal Aviation Administration (FAA) and are trained and certified by the State Fire Marshal as meeting the specified standards;
specified peace officers who are primarily engaged in active law enforcement activities;
fire and rescue services coordinators who work for the Office of Emergency Services (OES);
an employee who provides direct patient care, or a custodial employee in contact with COVID-19 patients, who works at a health facility;
an authorized registered nurse, emergency medical technician-I, emergency medical technician-II or emergency medical technician-paramedic;
an employee who provides direct patient care for a home health agency under Health and Safety Code § 1727;
employees of health facilities, other than those described in No. 7, if the employer cannot establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19;
a provider of in-home supportive services, when he/she provides the services outside his/her own home or residence.

In order to receive the presumption under § 3212.87, such employees must establish that:

They performed labor or services at their place of employment at the employer’s direction on or after July 6, 2020.
They tested positive for COVID-19 within 14 days after a day that they performed labor or services at their place of employment at the employer’s direction.
Their place of employment is not their home or residence.

The presumption extends to such employees following termination of service for a period of 14 days, commencing with the last date actually worked. If these conditions are met, the injury or death related to COVID-19 is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by "other evidence."

Unlike § 3212.88, which is discussed below, § 3212.87 does not specify evidence that may be used to rebut the presumption. LC 3212.88 states, "Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures 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." Because § 3212.87 doesn't limit the rebuttal evidence that maybe used or considered, there is no reason why the same evidence can't be used to rebut the presumption under § 3212.88.

LC 3212.87 also requires liability for a claim of illness related to COVID-19 to be denied within 30 days after the date the claim form is filed pursuant to § 5401. If it is not denied within the 30-day period, the illness is presumed compensable, and this presumption is rebuttable only by evidence discovered subsequent to the 30-day period.

If the presumption applies, an employee will be entitled to regular workers' compensation benefits including full hospital, surgical, medical treatment, disability indemnity and death benefits. LC 3212.87 does not cover expenses related to a self-quarantine or mandatory quarantine for employees who do not test positive.

LC 3212.87 requires that if an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits must be used and exhausted before any temporary disability benefits or benefits under § 4800, § 4800.5 or § 4850 are due and payable. LC 3212.87 requires an employee to exhaust special COVID-19 time-off benefits provided by federal law before the workers' compensation benefits attach. If an employee does not have those sick leave benefits, he or she must be provided temporary disability benefits or other benefits, if applicable, from the date of disability without application of the normal waiting period for temporary disability benefits. Unlike for injuries related to COVID-19 before July 6, 2020, there is no requirement for employees to be certified for temporary disability every 15 days for the first 45 days following the COVID-19 diagnosis.

LABOR CODE § 3212.88 –– PRESUMPTION FOR OUTBREAK AT PLACE OF EMPLOYMENT

LC 3212.88 establishes a COVID-19 presumption for employees who are not covered by § 3212.87. It applies to employees who test positive during an outbreak at their place of employment if the employer has five or more employees. To qualify for this presumption, these must be established:

The employee tested positive for COVID-19 within 14 days after a day that he/she performed labor or services at his/her place of employment at the employer’s direction.
The employee performed labor or services at his/her place of employment at the employer’s direction on or after July 6, 2020.
The employee’s positive test occurred during a period of an outbreak at his/her specific place of employment (that is, the building, store, facility or agricultural field where he/she performs work at the employer’s direction).
The specific place of employment was not the employee's home or residence, unless he/she provides home health care services to another individual at his/her home or residence.

LC 3212.88 specifies that an “outbreak” exists if within 14 calendar days, one of these occurs at a specific place of employment:

Four employees test positive for COVID-19 at a specific place of employment with 100 employees or fewer.
Four percent of the number of employees test positive for COVID-19 where more than 100 employees reported to the specific place of employment.
The place of employment is ordered to close due to a risk of infection with COVID-19 by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health or a school superintendent.

The statute clarifies that if an employee performs in multiple places of employment within 14 days of his or her positive test, the positive test must be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak exists at any one of them, that is the employee’s “specific place of employment.”

If these conditions are met, the injury or death related to COVID-19 is presumed to arise out of and in the course of the employment. This presumption will be extended to any covered person employee following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment.

This presumption is disputable and may be controverted by "other evidence." LC 3212.88 doesn't limit the evidence that may be used to rebut the presumption. Moreover, it states, "Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures 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."

An employee covered by § 3212.88 is entitled to benefits including full hospital, surgical, medical treatment, disability indemnity and death benefits. If an employee has paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits, benefits under § 4800, § 4800.5 or § 4850 or Education Code § 44977, § 44984, § 45192, § 45196, § 87780, § 87787, § 88192 or § 88196 are due and payable. If an employee does not have those sick leave benefits, the employee must be provided the appropriate benefits from the date of disability. The waiting period for temporary disability benefits will not apply.

Unlike LC 3212.87, which requires liability for a claim of illness related to COVID-19 to be denied within 30 days, § 3212.88 requires liability for a claim of such illness to be rejected within 45 days after the date the claim form is filed. If the claim is not denied within the 45-day period, the claim is presumed compensable and the presumption is rebuttable only by evidence discovered subsequent to the 45-day period.

Significantly, § 3212.88 establishes additional reporting requirements for employers. When an employer knows or reasonably should know that an employee has tested positive for COVID-19, it must report to its claims administrator in writing via electronic mail or facsimile within three business days all of these:

An employee has tested positive. (For the initial report, the employer must not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless he/she asserts that the infection is work related or has filed a claim form pursuant to § 5401.)
An employee tested positive on a specified date, which is the date the specimen was collected for testing.
During the 14-day period preceding the date of an employee's positive test, specify the address or addresses of employment where he/she worked.
In the 45-day period preceding the last day the employee worked at each specific place of employment, provide the highest number of employees who reported to work at his/her specific place of employment.

The statute also requires an employer to review past cases and report those to the claims administrator. It requires any employer who is aware of an employee testing positive on or after July 6, 2020, and prior to the effective date of the statute, to report the required information to the claims administrator in writing via electronic mail or facsimile, within 30 business days of the effective date of the statute.

LC 3212.88 directs that an employer or other person acting on behalf of an employer who intentionally submits false or misleading information or who fails to submit the required information is subject to a civil penalty of as much as $10,000 to be assessed by the Labor commissioner. The commissioner may issue a citation following an inspection or investigation. LC 3212.88 also establishes procedures to contest the civil penalty citation.

The claims administrator must use information reported by the employer to determine if an outbreak has occurred for the purpose of administering a claim. The claims administrator must use the information to retroactively determine if an outbreak has occurred from July 6, 2020, to the effective date of the statute for the purpose of applying the presumption. A claim is not part of an outbreak if it occurs during a continuous 14-day period in which the requisite number of positive tests have not been met. The claims administrator must continually evaluate each claim to determine whether the requisite number of positive tests have occurred during the surrounding 14-day periods.

For a detailed discussion of Gov. Newsom's Executive Order, see the article published by "Sullivan on Comp," May 6, 2020, "Governor Issues Executive Order Creating Temporary COVID-19 Presumption".