The California Legislature passed sweeping workers’ compensation legislation in its 2020 session.  This legislation (SB 1159, Hill) address circumstances surrounding the COVID-19 pandemic, and imposes significant new costs on the workers’ compensation system and significant new responsibilities on employers.

The principal features of SB 1159 are:

• Codification of Governor Newsom’s Executive Order N-62-20 from April 2020. As codified in SB 1159, it creates a rebuttable presumption of work-relatedness for COVID-19 infections among employees who worked on the employer’s premises at the direction of the employer between March 15 and July 5, 2020.
• Creates a rebuttable presumption of work-relatedness for COVID-19-infected for healthcare workers, first responders, custodial workers and some EMT/paramedics and home healthcare workers.
• Creates an “outbreak” based rebuttable presumption for cases occurring after July 6, 2020 not covered by either the codified executive order or the rebuttable presumption for healthcare workers and first responders, based on the occurrence of 4 instances of COVID-19 infection for employers of 100 or fewer or COVID-19 infection of 4% of workforce of an employer of more than 100 employees within a 14 day period, or if a specific place of employment is ordered closed by the Department of Public Health or Cal/OSHA.
• An “urgency clause” meaning SB 1159 immediately becomes effective law when signed by Governor Newsom.

Agricultural employers are most likely to be impacted by the outbreak-based rebuttable presumption. Generally, this presumption does not apply to employers of 4 or fewer employees.  It makes temporary disability compensation available immediately but requires exhaustion of paid sick leave benefits available in response to COVID-19, like the Paid Sick Leaves provided by the federal Families First Coronavirus Response Act (FFCRA) and Governor Newsom’s April Executive Order N-51-20 providing paid sick leaves for food sector employees not covered by FFCRA.  The presumption extends up to 14 days following termination, beginning on the last day actually worked.

The presumption would be triggered if the illness occurred on or after July 6, 2020 if the employee performs work at their place of employment under the employer’s direction if the positive test occurred “during a period of an outbreak at the employee’s specific place of employment.

An “outbreak” is defined for employers of 100 or fewer as four employees testing COVID-19-positive, for employers of more than 100 employees as positive COVID-19 tests among 4% of the workforce at the employees’ “specific place of employment,” of if the workplace is shut down by Department of Public Health or Cal/OSHA order.  “Specific place of employment” is defined as “…the building, store, facility or agricultural field where an employee performs work at the employers direction.”  It does not include the employee’s home.  If an employee works in multiple locations with 14 days of the positive test, that positive test is counted to determine whether the rebuttable presumption threshold has been met with respect to each place of employment.

Claims administrators for workers’ compensation insurers are assigned significant responsibilities for monitoring and determining the occurrence of an outbreak, but employers are required to promptly provide information to the claims administrator, or face legal penalties of up to $10,000:

“When the employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer shall report to their claims administrator in writing via electronic mail or facsimile within 3 business days all of the following:”

(1) An employee has tested positive (without providing any personally identifiable information regarding the employee unless the employee is asserting the infection is work related or has filed a claim);

(2) The date the employee tests positive (date specimen was collected for testing);

(3) Specific address(es) of the employee’s specific place of employment during the 14- day period preceding the positive test;

(4) The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day of employment the employee worked at each location.

SB 1159 provides a 30 day “safe harbor” employers to provide information to their claims administrators spanning the past 2 months:

• Number of employees who tested positive;
• Date of the positive test for each employee;
• Address(es) of employment for each positive employee for the 14-days preceding the positive test.

Employers must also provide information regarding the highest number of employees who reported to work at each of the employer’s specific places of employment “on any given work day between July 6, 2020 and the effective date of this section.”

FELS is working to provide further information on SB 1159 and what it means for agricultural employers.  Please watch the FELS Newsletter and FELS’ website for updates.

Questions? Comments? Please call 800-753-9073 or email info@fels.net