Employment Law Bulletin | October 12, 2020

SB 1159: A Rebuttable Presumption That COVID-19 Is an Occupational Injury Eligible for Workers’ Compensation Benefits; Employer Notice Obligations

On September 17, 2020, Governor Newsom signed Senate Bill 1159 which provides a rebuttable presumption that an employee’s illness related to COVID-19 is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met.  The new law took effect immediately upon signing and will remain in effect through January 1, 2023.

SB 1159 applies, in significant part, to California employers of five or more employees and creates a rebuttable presumption that an employee who tests positive for COVID-19 contracted it during the course of employment so long as certain criteria related to timing and the employee’s work location are met.  Specifically, the workers’ compensation insurance claims adjuster must find that the positive test result occurred: (1) after July 6, 2020; (2) within 14 days of when the employee performed work at the employee’s “place of employment” at the employer’s direction; and (3) during a period of an “outbreak” at the employee’s place of employment.

For the purposes of this Bill, an outbreak occurs if, within a 14-day period, four employees (for employers of under 100 employees) or 4% of the employees (for employers of 100 or more) at the specific place of employment test positive for COVID-19.  An employee’s place of employment includes a building, store, facility or agricultural field, but does not include an employee’s residence unless the employee provides home health care services to another individual at the employee’s residence.  However, employers should be aware that there are other worker’s compensation considerations that go beyond SB 1159 for employees who are working from home.

SB 1159 allows for workers’ compensation benefits for firefighters, peace officers, healthcare workers and any employees who were infected between March 19, 2020 and July 5, 2020, upon meeting criteria 1 and 2, above, but does not require these categories of employees to show criteria 3 (that the positive test occurred during an outbreak).

Under SB 1159, employers have the opportunity to overcome the presumption and avoid liability for a COVID-related claim by producing evidence that the virus was contracted somewhere other than the employee’s place of employment and evidence of measures the employer has taken to reduce potential transmission in the workplace.  Health facilities may overcome the presumption by showing that the employee did not have contact with a patient within the 14-day period before the positive test.   If no evidence is presented or the employer fails to overcome the presumption, the employee will be deemed to have contracted the infection at work so long as the claims administrator determines that the above criteria are met.  Before receiving disability benefits for a COVID-19 worker’s compensation claim, SB 1159 requires employees to use all available paid sick leave benefits.

Finally, SB 1159 also creates additional reporting requirements for employers.  As of September 17, 2020, employers who know or reasonably should know that an employee has tested positive for COVID-19 must inform their worker’s compensation claims administrator of (1) the positive test result; (2) the date the employee tested positive; (3) the specific location or locations of employee’s place of employment in the 14 days preceding the positive test; and (4) the highest number of employees who reported to work at the employee’s place(s) of employment in the 45-day period preceding the last day the employee worked.  Notification must be made by e-mail or fax within three business days of discovering that the employee tested positive.  It is important to note that employers are obligated to report the above information regardless of whether they believe the infection occurred at the workplace.  The Bill charges the claims administrator with making the ultimate decision as to whether the employee contracted the infection at work and whether it happened during an outbreak.  A failure to report the required information or an attempt to provide false or misleading information can result in a civil penalty of up to $10,000.  Employers should be aware of SB 1159’s reporting requirements and implement procedures to ensure compliance with its tight deadlines.

Contact an SMT employment attorney for additional guidance on the new requirements of this Bill and steps on how to achieve compliance.

Kari Brown

The Sexual Harassment Prevention Training Deadline Is Almost Here – Are You Ready?

January 1, 2021 is the deadline for employers with five or more employees to provide harassment prevention training to all California-based employees.  As we are just a few months away from that deadline, we thought we would remind you of the training requirements to be sure you are in compliance by the end of the year.

  • Non-supervisory employees must receive one hour of training.
  • Supervisors must receive two hours of training.
  • After the initial training in 2020, employees must be re-trained for every two years.
  • New hires must receive training within six months of their hire date, unless they can provide evidence they completed training with a previous employer during 2020.
  • Employees promoted to a supervisory position must receive the supervisor training within six months of their promotion.
  • Beginning January 1, 2021, seasonal and temporary employees, and employees who are hired to work for less than six months, must receive training within 30 days of their date of hire or within 100 hours worked, whichever occurs first.

Not sure where to go from here?  Contact an SMT employment attorney.  We can provide the employee training or discuss other options to help you select the most efficient and cost-effective training method for your business.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown