On September 17, 2020, Governor Newsom signed two pieces of legislation related to workers and workers’ compensation; Senate Bill 1159 (Hill), which creates new workers’ compensation presumptions for COVID-19 infections, and Assembly Bill 685 (Reyes), which requires employers to report outbreaks of COVID-19 to local health officials.

SB 1159 has an urgency clause, and therefore its provisions go into effect immediately.

The text of the bills can be found here:

SB 1159: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB1159

AB 685: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB685

SB 1159 contains three main provisions:

Codifies Governor Newsom’s May 6, 2020, Executive Order N-62-20 (Labor Code Section 3212.86)

Creates a new rebuttable COVID-19 presumption for specified workers, including firefighters, certain peace officers, and certain healthcare workers (Section 3212.87)

Creates a new rebuttable COVID-19 presumption for all other workers, limited to certain employers and only when certain positive testing thresholds are met (Section 3212.88)

Labor Code Section 3212.86

Newly created Section 3212.86 codifies in statute the COVID-19 presumption created earlier this year by Executive Order. The language in statute largely mirrors the language of the Executive Order.

This presumption applies to all workers who test positive or are diagnosed with COVID-19 within 14 days of performing labor or services at the employee’s place of employment at the employer’s direction.

The presumption applies from March 19, 2020, through July 5, 2020.

A COVID-19 Workers’ Compensation Presumption Fact Sheet released by CAAA on June 25, 2020, relating to the May 6, 2020, Executive Order can be found by clicking here. As the language in 3212.86 essentially mirrors the Executive Order, the Fact Sheet is applicable to Section 3212.86.

Labor Code Section 3212.87

Section 3212.87 creates a rebuttable presumption for certain enumerated groups, including:

Firefighters (3212.587(a)(1) – (a)(4))

Peace officers (3212.877(a)(5))

Fire and rescue services coordinators with the Office of Emergency Services (3212.87(a)(6))

Healthcare workers (3212.87(a)(7) – (a)(10))

In-home support providers (3212.87(a)(11))

Practitioners are encouraged to read the statute carefully to determine whether an injured worker is covered by the definitions in Section 3212.87.

The presumption is largely similar to the presumption in Section 3212.86, with one primary exception relating to temporary disability benefits. Unlike Section 3212.86, which requires that the employee obtain a physician’s note certifying them for temporary disability every 15 days for the first 45 days following diagnosis, there is no such requirement in Section 3212.87.

This presumption applies to injuries on or after July 6, 2020, and remains in effect until January 1, 2023, at which time it will be repealed.

Labor Code Section 3212.88

Section 3212.88 creates a rebuttable presumption that applies to workers not covered by Section 3212.87. While different than the presumptions contained in Sections 3212.86 and 3212.87, it has a number of common elements, including:

Requires a positive test within 14 days of performing work at an employee’s place of employment (that isn’t the employee’s home) at the employer’s direction

Requires employees to use COVID-19-related sick leave before accessing temporary disability / 4800 / 4800.5 / 4850 / Education Code benefits

No waiting period for temporary disability benefits

Beyond those similarities, there are a number of differences.

This presumption only applies to employers with 5 or more employees (3212.88(a)).

The employer has 45 days (instead of the 30 days provided by Sections 3212.86 and 3212.87) to deny a claim; if not denied within 45 days, the claim is presumed compensable (3212.88(f)).

Perhaps the biggest difference is that this presumption only applies if an employee’s positive COVID-19 test occurs during an “outbreak” at the employee’s “specific place of employment” (Section 3212.88(b)(3)).

Section 3212.88(m)(4) defines “outbreak” as follows:

“(4) An “outbreak” exists if within 14 calendar days one of the following occurs at a specific place of employment:

(A) If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.

(B) If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment, test positive for COVID-19.

(C) 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 with COVID-19.”

Section 3212.88 includes language requiring employers to report positive COVID-19 tests to their claims administrator (3212.88(i) and allows the Labor Commissioner to issue civil penalties of up to $10,000 against an employer for submitting false or misleading information or for failing to submit information (3212.88(j)).

In connection with this reporting requirement, AB 685 (Reyes) creates additional reporting requirements when an employer receives notice of potential COVID-19 exposure (Labor Code Section 6409.6).

The statute also defines a “specific place of employment” in 3212.88(m)(3)(A) – (m)(3)(B).

This presumption applies to injuries on or after July 6, 2020, and remains in effect until January 1, 2023, at which time it will be repealed.

If you have any questions, please contact CAAA Legislative Chair Jason Marcus at [email protected].