California employees who test positive for COVID-19 (coronavirus) will have an easier time getting workers’ compensation benefits thanks to Senate Bill 1159, signed by Governor Gavin Newsom on September 17, 2020. As we previously reported, Governor Newsom issued an executive order in May creating this same presumption, but that order expired in July. The new bill expands the definition of “injury” to include illness or death from COVID-19, effective immediately until January 1, 2023.
Employees will be presumed to have contracted the illness during the course of their employment if: (1) the employee tested positive or was diagnosed with COVID-19 within 14 days after the employee performed work at the employer’s direction; (2) the work was performed on or after March 19, 2020, and on or before July 5, 2020; and (3) the work wasn’t performed at the employee’s home or residence. For firefighters, employees who work in health facilities, emergency medical personnel, and in-home health care workers, the presumption in the original executive order extends beyond July 5, 2020. For all other employees who test positive for COVID-19, they will be presumed to have contracted the illness at work if: (1) they work for an employer with five or more employees; (2) the employee tests positive for COVID-19 during an outbreak at their place of employment; (3) the employee tested positive or was diagnosed with COVID-19 within 14 days after the employee performed work at the employer’s direction; (4) the work was performed on or after July 6, 2020; and (5) the work wasn’t performed at the employee’s home or residence. The employer can overcome this presumption by providing evidence that the employee didn’t contract COVID-19 during the course of their employment. Such evidence might include the steps the employer has taken to reduce the possible transmission of the virus in the workplace, or evidence related to the employee’s risks of infection outside the workplace.
The bill requires an employee who has paid sick leave benefits specifically available in response to COVID-19 to use and exhaust those benefits before receiving temporary disability or other benefits. If an employee doesn’t have any such paid sick leave available, the employee should receive temporary disability or other benefits from the date of disability, without a waiting period.
Tips: Continue to be vigilant about protecting your employees from COVID-19 in the workplace, and be sure to document all of your efforts. If you have information to suggest that an employee didn’t contract their illness at work, be sure to document that as well and share it with your workers’ comp carrier when appropriate.