Senate Bill 1159

California Passes Senate Bill 1159

California recently approved Senate Bill 1159, which will impact COVID-19 cases amongst all workers. Below is a summary of the four main sections.

Section 1

Establishes a requirement for a study to be completed by the Commission on Health and Safety and Workers’ Compensation regarding the impacts of COVID-19 on the California workers’ compensation system:

• Impacts on indemnity benefits, medical benefits and death benefits
• Effects on different occupational groups
• Preliminary report due Dec. 31, 2021
• Final report due April 30, 2022

Section 2

Codification of Governor’s Executive Presumption Order (Order Number N-62-20), effective Mar. 19, 2020 – July 5, 2020. The only variation from the governor’s prior presumption order are the following changes:

• A serology test can be used to validate claims where a diagnosis is confirmed with a positive test within 30 days.
• A physician’s assistant or nurse practitioner can diagnose COVID-19, but later needs to be confirmed by testing.

Section 3

Creates a rebuttable presumption for claims on or after July 6, 2020, for first responders and healthcare workers providing treatment to patients.

• Covered healthcare employees under this presumption include those who provide direct patient care and custodial employees “in contact” with COVID-19 patients.
• Facilities covered by this section are general acute care hospitals, acute psychiatric hospitals, skilled nursing facilities (including “small house skilled nursing facilities”), intermediate care facilities/developmentally disabled-continuous nursing facilities and hospice facilities.
• Covered healthcare employees include all RNs, EMTs/paramedics, all employees who provide direct patient care for at-home health agencies and providers of in-home supportive services (to the blind, disabled or elderly) outside of the residence of the employee.
• If these facilities get one case, they often have several due to the nature of the work, making it very difficult to dispute even without a presumption.
• Healthcare workers who do not work directly with patients (within 14 days of getting sick) are not covered by this presumption (e.g., administrators, supervisors, kitchen workers, etc.).
• Employees must exhaust benefits specifically available for COVID-19 before insurers are liable for temporary total disability payments.
• The presumption applies up to 14 days after the employee is terminated.
• There is a retroactive 30-day investigation period.
  • If claims are not denied within 30 days, they would be presumed compensable and only evidence obtained after the 30-day investigation period may be used to dispute those claims.
  • After July 5, 2020, the insurers had 90 days to investigate, which is retroactively cut down to 30 days.
• Death benefits do not need to be paid to the state if there are no dependents identified.
• Claims can still be denied if there is a negative test or if there is sufficient evidence to rebut the claim.
• The sunset date is Jan. 1, 2023.

Section 4

A rebuttable outbreak threshold presumption will apply for all other workers.

• Employer must have five or more employees and the positive test must occur within 14 days of the last day worked (excluding any work done from home).
• It applies on or after July 6, 2020 (after the expiration of the Governor’s presumption order).
• The evidence to rebut this could include, but is not limited to, preventative measures in place and non-industrial exposure.
• A positive test must occur during a period of outbreak at an employee’s specific place of employment.
• An outbreak is defined as follows:
  • Within 14 calendar days, four employees test positive (if 100 employees or less).
  • Within 14 calendar days, 4% of workforce tests positive (if over 100 employees).
  • 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.
• Employees must exhaust COVID-19 benefits before the insurer is liable for temporary total disability payments.
• The presumption applies up to 14 days after the employee is terminated.
• A 45-day investigation period has been created.
• The insurer does not have to pay death benefits to the state if there are no dependents identified.
• When an employer knows or reasonably should know that an employee has tested positive for COVID-19, they must report it to their claim administrator within three (3) business days via fax or email. The employer:
  • Cannot provide any personal identification information unless the employee alleges that the illness is industrial or files a DWC-1.
  • Must report the date of the positive test.
  • Must report the address of the employee’s specific place of employment during the 14-day period before the positive test.
  • Must report the highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period before the last day the employee worked at each specific place of employment.
  • Will face a $10,000 fine if there are false reports or they fail to submit information.
  • Can contest violations by specified procedures.

Employers must report all of the data noted above for the period of July 6, 2020 to Sept. 17, 2020 if they had an employee test positive during that period.

• Employers must report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given workday between July 6, 2020 and Sept. 17, 2020.
• If an employee wants to file a workers’ compensation claim for his or her COVID-19 illness, please have the employee complete and return a DWC-1 claim form, then report the claim through normal channels.

Reporting and Tracking

As noted above, it is critical to report any outbreak presumptions to us as soon as possible.

With the adoption of Senate Bill 1159 and Labor Code 3212.88, this form shall be utilized to report information related to an employee testing positive for COVID-19 on or after July 6, 2020. If your place of business is defined in subdivision (a), (b), (c), (m), or (n) of Section 1250 of the Health and Safety Code, you are not required to submit this form for “outbreak” tracking purposes.

Upon completion of this form, you must submit by email or fax. Once an employer knows or reasonably should have known that an employee tested positive for COVID-19, this information shall be reported within three (3) business days regardless of your employee’s desire to file a workers’ compensation claim. For testing dates from July 6, 2020 through the effective date of Senate Bill 1159, the employer must report information within thirty (30) days of Sept. 17, 2020.

CA SB 1159 Reporting Form 

This must be submitted through the following means:

            Email: [email protected] 

            Fax: 844-618-3636