As the COVID-19 pandemic progresses, workers’ compensation will be an area of law to watch, as there are sure to be new precedents established both federally and at the state level. For the last eight months, we have been navigating in such unchartered waters especially in the workplace. Providing a safe workplace (both physically and emotionally) is the foremost obligation for any and all employers. This obligation begs many questions. Should businesses be responsible and pay their employees workers’ compensation benefits if they contract COVID-19? How does anyone know if they contracted COVID-19 at work, or in the way to work, or at home? Should it be presumptive that these workers contracted COVID-19 at work? Typically, workers’ compensation benefits include payment of all medical bills and a portion of wages lost due to the worker’s inability to work. There are additional payments available for permanent disability or the death of the worker, with the latter going to surviving family members.
Many states have issued executive orders or amended their workers’ compensation statutes to create a presumption of COVID-19 coverage for certain types of industries. These bills protect the health and safety of all employees and the public by facilitating the provision of workers’ compensation benefits. During this pandemic, while many of us have been able to work remotely, essential workers such as health care workers have continued to work, where the risk of exposure is high. These new laws include hefty employer penalties for not reporting or incorrectly reporting positive cases in the workplace.
According to the California Workers’ Compensation Institute, health care workers comprised nearly 40 percent of all COVID-19 claims, while public safety and other government workers, retail employees and manufacturing workers collectively made up another 30 percent of claims.
California SB 1159
On 09/17/20, Governor Gavin Newsom signed legislation that establishes a workers' compensation presumption. “Protecting workers is critical to slowing the spread of this virus,” Newsom said. SB 1159 codifies the COVID-19 presumption created by Executive Order N-62-20 and provides two new rebuttable presumptions that an employee’s illness related to coronavirus is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met. Employees who are sick can stay home and be provided workers’ compensation benefits, thereby reducing the spread of the virus to others at work and in the community. The new law encourages employers to comply with all local health directives and guidance concerning safely reopening businesses to reduce risk of exposure and mitigate outbreaks in the workplace. Place of employment does not include an employee’s residence if they are working at home (telework).
Specifically, this presumption covers firefighters, peace officers, employees of health facilities who provide direct patient care or custodial services, nurses, EMTs, and employees who provide direct patient care for home health agencies. The presumption also applies to other employees of health facilities, but the presumption for these employees does not apply if the employer can show the employee did not have contact with a patient who tested positive for COVID-19. For other employees, the law applies if there is an “outbreak at the employee’s specific place of employment.” An outbreak exists if:
· For employers with 100 or fewer employees at a specific place of employment if 4 employees test positive for COVID-19
· For employers with more than 100 employees at a specific place of employment if 4 percent of the number of employees who reported to the specific place of employment tested positive for COVID-19
· If the specific place of employment is ordered closed by a local health department, State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent.
Presumption of Coverage
If you are eligible under SB 1159’s criteria, you will be presumed eligible for workers’ compensation benefits. SB 1159 will apply to most employers in the state that have a COVID-19 outbreak through 2022, meaning it is much more likely that worker infections will be covered under workers' compensation coverage. Employees who are sick can stay home and be provided workers’ compensation benefits, thereby reducing the spread of the virus to others at work and in the community.
Presumption is Rebuttable
In layman terms, that means the employer can dispute a claim and present evidence that the worker did not contract COVID-19 at work or are otherwise ineligible for the presumption. If the employer disputes the claim, the worker has the right to have the issue heard and decided by a workers’ compensation judge. Good2BeBack can help employers prove that they have taken the necessary measures to collect symptomatic and test result data, help to keep the organization in compliance, and help them to easily respond to inquiries and/or audits.
New Employer Reporting Requirements
The law requires employers to provide notice to their workers' compensation carrier of employees who test positive for COVID-19. SB 1159 was enacted as an "urgency" measure and therefore went into effect immediately.
The new law says when an employer "knows or reasonably should know" that an employee has tested positive for COVID-19, it shall report the following information to its workers' compensation claims administrator within three business days:
An employee has tested positive.
The date that the employee tests positive (the date the specimen was collected for testing).
The specific address or addresses of the employee's place of employment during the 14-day period preceding the positive test.
The highest number of employees who reported to work in the 45-day period preceding the last day the employee worked at the place of employment.
All of this information is easily gathered via Good2BeBack, which can reduce the amount of work required to collect and report this data, ten-fold.
California employers should take heed of these significant developments as SB 1159 goes into effect immediately. As discussed above, the new law has some significant reporting requirements (including going back and reporting on positive cases dating back to July 6, 2020 by October 17, 2020). Also note that regardless of whether an employee files a claim before or after September 17, 2020, the employer is required to notify the employee of acceptance or denial of his or her claim by letter, as they must do under current law. These obligations create resource intensive allocations.
The COVID-19 pandemic has changed many aspects of the current workplace and has placed the onus on employers to ensure that they are following state and local health and infection prevention protocols.
The main takeaway is that we all must keep communication channels open and ensure that we educate and protect all employees in the workplace – especially ones on the front line battling this virus. The message is clear “if you are sick, then stay home”. Good2BeBack enables employers to let employees know in real-time if they should stay home based on the company’s specific re-entry rules that are customized in the app. But for employees to comply they must know that their job and livelihood is safe and not fear repercussions or veiled threats from their employer. Otherwise more states will deem in necessary to implement laws and labor-intensive protections for affected workers.
After all, we are all in this together, and how we handle challenges is how we show our character!
Carol Flynn is president of HR Solutions Inc and is a subject matter expert in sexual harassment, organizational development and workplace integration. She has over 25 years in human resource management and is a professor and educator with a Master of Arts in Industrial/Organizational Psychology; life-time certified senior professional in human resources (SPHR); certified EEOC trainer; and past investigative member of the Florida Bar Grievance Committee (FBGC). For further information, see www.hrsolutionsfl.com