COVID-19 Information

Updated 10/23/2020

General information:

We understand there will likely be questions about some new California laws and how it will impact your business and employees. We urge you to carefully read all the information provided below regarding COVID-19 infections.

As of September 17, 2020, new California legislation titled SB 1159 was signed into law and mandates new reporting requirements for both Employers and the Claims Administrators.  This new law requires all Employers who have five (5) or more employees to report all Employees who test positive for COVID-19 to their Workers’ Compensation Claims Administrator.

An employer who intentionally submits false or misleading information OR fails to submit information timely is subject to a civil penalty up to ten thousand dollars ($10,000).

EMPLOYER’S REPORTING OBLIGATIONS

For any Employee who tests positive for COVID-19 between July 6, 2020 and September 16, 2020 the employer must report specified information, as described below, to the Claims Administrator by October 29, 2020 (30 business days from the effective date of SB 1159).

For any Employee who tests positive for COVID-19 on or after September 17, 2020, you must report to your Claims Administrator within three (3) business days. This reporting requirement applies to all employees that test positive for COVID-19 for both work-related and non-work-related cases. Once the Employer knows or ‘reasonably should know’ that an employee has tested positive for COVID-19, the employer must do all of the following:

1. Report a claim to us in writing:
   REPORT NEW CLAIMS
   Fax: 570-825-0611
   Email: GuardClaimsTeam@guard.com
   Online: https://www.guard.com/claims/
2. If an Employee believes they contracted COVID-19 at work, Employers will be required to report this as a Workers’ Compensation claim to us and provide the Employee with a DWC-1 Claim Form.
3. If an Employer or an Employee believes the COVID-19 infection was not the result of workplace exposure, the Employer will still be required to report this occurrence. When making the report, do not include any personally identifiable information for Employee(s) who have not alleged a workplace exposure. We will record this information on a report only basis.

Ready to Report a COVID-19 claim? 

Important Deadlines:

Current COVID-19 Claims: For any Employee who tested positive for COVID-19 on or after September 17, 2020, you must report to your Claims Administrator within three (3) business days.

Past COVID-19 Claims: For any Employee who tested positive for COVID-19 between July 6, 2020 and September 16, 2020, the Employer will have until October 29, 2020, to report a claim to their Workers’ Compensation Claims Administrator.

Required Information:

When reporting a claim, the Employer will be required to provide ALL of the following information:

• The last day worked of the infected COVID-19 Employee: The date of injury for Employees who tested positive for COVID-19, is determined by the Employee’s last day worked, not when they began to feel symptoms of COVID-19.
• The date the Employee tested positive for COVID-19: This means the date on which the specimen was collected for testing and NOT when the results of the test come out.
• Medical Documentation of a positive test result: Employees must provide medical documentation from a doctor confirming a positive test for COVID-19. Please ask for this documentation, record the date you requested it and the date received. You are required to maintain these records in the employee’s file. It is recommended the requests be made in writing.
• Place(s) of employment: Provide the address(es) of all locations the infected employee worked 14 days prior to testing positive and all locations the infected employee worked 14 days after testing positive for COVID-19. The law defines a specific place of employment as, “A specific place of employment’ means the building, store, facility, or agricultural field where an employee performs work at the employer’s direction.” In the case of an employee who performs work at the employer’s direction in multiple places of employment within 14 days of the employee’s positive test, the employee’s positive test shall be counted for each of those places of employment for the purpose of determining an outbreak. If an outbreak exists at any of those places of employment, that location is also considered the employee’s specific place of employment. A specific place of employment does not include the employee’s home or residence, unless the employee provides home health care services to another individual at the employee’s home or residence.
• Number of Employees that tested positive for COVID-19 at each worksite: The employer must provide the highest number of employees who worked at each place of employment with the infected Employee(s) on any day during that period of time.

Presumption Requirements

The new law supersedes Governor Newsom’s Executive Order N-62-20 (enacted on May 5, 2020), which covered all California employees who worked at a jobsite outside their home at the direction of their employer between March 19, 2020 – July 5, 2020 (Labor Code § 3212.86 and applies to dates of injury from March 19, 2020 to July 5, 2020).  

1. Any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following requirements are satisfied:
   1. 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;
   2. The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;
   3. The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and
   4. Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
2. The presumption set forth in Paragraph 1 is disputable and may be controverted by other evidence, but unless so controverted, the Workers’ Compensation Appeals Board is bound to find in accordance with it.
3. Notwithstanding Labor Code section 5402, if liability for a claim of a COVID-19-related illness pursuant to Paragraph 1 is not rejected within 30 days after the date the claim form is filed under Labor Code section 5401, the illness shall be presumed compensable, unless rebutted by evidence only discovered subsequent to the 30-day period.
4. An accepted claim for the COVID-19-related illness referenced in Paragraph 1 shall be eligible for all benefits applicable under the workers’ compensation laws of this state, including full hospital, surgical, medical treatment, disability indemnity, and death benefits, and shall be subject to those laws including Labor Code sections 4663 and 4664, except as otherwise provided in this section.
5. Notwithstanding any applicable workers’ compensation statute or regulation, where an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits or benefits under Labor Code section 4850 are due and payable. Where an employee does not have such sick leave benefits, the employee shall be provided temporary disability benefits or Labor Code section 4850 benefits if applicable, from the date of disability. In no event shall there be a waiting period for temporary disability benefits.
6. To qualify for temporary disability or Labor Code section 4850 benefit payments under this section, an employee must satisfy either of the following:
1. If the employee tests positive or is diagnosed under Paragraph 1 on or after the date of this  section, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis; or
2. If the employee tested positive or was diagnosed under Paragraph 1 prior to the date of this  section, the employee must obtain a certification, within 15 days of the date of the Order, documenting the period for which the employee was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis. All employees must be certified for temporary disability by a physician holding a physician and surgeon license issued by the California Medical Board. The certifying physician can be a designated workers’ compensation physician in an applicable Medical Provider Network or Health Care Organization, a predesignated workers’ compensation physician, or a physician in the employee’s group health plan. If the employee does not have a designated workers’ compensation physician or group health plan, the employee should be certified by a physician of the employee’s choosing who holds a physician and surgeon license.
7. The Department of Industrial Relations shall waive collection on any death benefit payment due pursuant to Labor Code section 4706.5 arising out of claims covered by this Order. Nothing in this Order shall be construed to modify or suspend any workers’ compensation statute or regulation not in conflict with this Order, or to reduce or eliminate any other right or benefit to which an employee is otherwise entitled under law, including the Families First Coronavirus Recovery Act, collective bargaining agreement, or Employee Benefit Plan, including group health insurance, that is in effect prior to March 19, 2020.

For employees who get sick or injured due to COVID-19 on or after July 6, 2020 the law enacted a rebuttable presumption of eligibility for workers’ compensation benefits, proving specified criteria is met (SB 1159 – Labor Code § 3212.87 and 3212.88). Newly reported COVID infections (verified by a positive test within 14 days of the last day worked) can trigger the presumption for previously filed claims. The Claims Administrator is now mandated to continuously evaluate each claim to determine whether the requisite number of positive tests have occurred during the surrounding 14-day period.

For employers who have five (5) or more employees and have an employee who tests positive for COVID-19

• An outbreak exists if within 14 days one of the following occurs at a specific place of employment: (1) four employees test positive if the employer has 100 employees or fewer; (2) four percent (4%) of the number of employees who reported to the specific place of employment test positive if the employer has more than 100 employees; or (3) 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 of COVID-19. 

First Responders and Health Care Workers

• Including active firefighting members of specified fire departments or units; certain peace officers; fire and rescue services coordinators who work for the Office of Emergency Services; employees who provide direct patient care or custodial employees in contact with COVID-19 patients who work for designated health facilities; paramedics and emergency medical technicians; employees providing direct patient care for a home health agency; providers of in-home supportive services; and other employees of designated health facilities.

FREQUENTLY ASKED QUESTIONS 

Question #1: If the employer has less than 5 employees at each location, does it have to report any of the above?

Answer #1: No. You do not have to comply with any of the above and you are not subject to any penalty for failing to so report.

Question #2: When should an employer ‘know or reasonably should know’ when someone tested positive?

Answer #2: An employer ‘knows’ an employee testing positive when someone in a supervisory or managerial position receives a copy of the positive test or other information directly from the employee who tested positive. An employer ‘reasonably should know’ that an employee tested positive when there is sufficient evidence to support the fact that an employee tested positive from sources other than that employee. Examples can include, but are not limited to, knowing the employee is sick and/or suffers symptoms (fever, cough, shortness of breath, etc.) known to be caused by COVID-19 and off work, but was confirmed to be exposed to individuals that already tested positive.

Question #3: What kind of ‘test’ must the employer verify was performed by the employee?

Answer #3: The ‘test’ must be a ‘PCR test’. This test is used to detect the presence of an antigen – a toxic substance in the blood, like COVID). If someone reports they took a ‘serology test’ – a test usually done to detect if someone developed antibodies in the blood to fight off the virus -, that test should not be used to require the employer to report that employee to your Claims Administrator.

Question #4: How does an employer determine ‘the last date of work’ in order to start calculating the 45 day period?

Answer #4: The last date of work is from the last date on which the employee physically worked at a specific location, or locations, at the direction of the employer.

Question #5: Who decides whether or not there is an outbreak?

Answer #5: Your Workers’ Compensation Claims Adjuster/Administrator will make that determination based on the information that is supplied to them by the employer in accordance with the employer’s obligations above.

Question #6: How an Outbreak is Determined?

Answer #6: An “outbreak” was defined by the law and exists if one of the following occurs at a specific place of employment:

1. If the employer has less than 100 employees at a specific place of employment and four (4) or more employees test positive for COVID-19 in a 14-day period.
   
   OR
2. If the employer has more than 100 employees at a specific place of employment and four percent (4%) of the number of employees test positive for COVID-19 in a 14-day period.
   
   OR
3. 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 & Health, or a school superintendent due to a risk of infection with COVID-19.

Question #7: What if the employees work from home?

Answer #7: Unless your employees are in-home health care workers who assist a non-family or house member, employees who work from home are not covered by this law.

Question #8: What if the employee works from home and also works from jobsite?

Answer #8: As long as the employee is directed by the employer to work from a specific jobsite at some point in time during this coverage period, then this law applies to that particular employee as well.

Question #9: When must employers pay sick leave benefits?

Answer #9: If an employee has paid sick leave benefits specifically available in response to COVID-19 (COVID-19-related supplemental paid sick leave benefits, like FFCRA’s Emergency Paid Sick Leave or California’s supplemental paid sick leave under AB 1867), then those benefits must be used and exhausted before being entitled to receive workers’ compensation benefits thereafter, and only if applicable.

Question #10: What can an employer do to help with the Claims Administrator’s investigation?

Answer 10:

• Get a signed medical release and get records from primary care doctor, urgent cares, Emergency Rooms.
• Create a work log of the applicant’s industrial movements and contacts in last 14 days prior to diagnosis.
• Follow contact tracing data available.
• Interview co-workers to confirm whether the employee adhered to safety practices at work, like wearing a mask, gloves, etc., and to address their knowledge of issues relating to non- work related events to include social distancing, non- work related COVID-19 exposure, travel, etc.
• Perform social media checks immediately before information is deleted.
• Have the employee fill out a questionnaire (hand out with Claim Form/DWC-1) outlining timeline including:
  • When the applicant stopped work
  • When they believe infection occurred
  • All other possible exposures
  • All contacts in 14 days prior to positive test
  • All movements in the last 14 days
  To find the full Senate Bill 1159, click here: SB1159

Interested in learning more about SB 1159 and other laws related to COVID-19? Please visit https://www.labor.ca.gov/coronavirus2019/ for more information.

Please note, the information contained herein regarding California law is for informational purposes only.  Berkshire Hathaway GUARD does not provide legal advice to its insurance policyholders.  Please consult your legal counsel or other professional for legal advice regarding your obligations under California law.