EEOC Issues New COVID-19 Vaccination Guidelines for Employers

COVID-19 vaccine

The Equal Employment Opportunity Commission has affirmed that employers can mandate COVID-19 vaccines for employees, subject to some limitations.

The EEOC’s updated guidance offers direction regarding employer-mandated vaccinations, accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief, and certain implications of pre-vaccination medical screening questions under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act.

Asking a patient pre-screening questions is a routine part of a vaccination. These questions may constitute a “medical examination” as defined by the ADA. An employer must be able to show that the inquiries are “job-related and consistent with business necessity” and that an unvaccinated employee could pose a direct threat to the health of others in the workplace.

The guidance does make clear that the administration of a COVID-19 vaccination to an employee itself does not constitute a medical examination for the purposes of the ADA.

Urging employees to get the vaccine voluntarily or requiring them to submit proof that a non-contracted third party (physician, pharmacist, or public health center) administered it may be a better alternative with fewer legal complications.

Reasonable accommodations

Some employees may be unable to get the vaccine for health or disability reasons. Other employees may have sincere religious objections to getting inoculated. In both cases, employers must make reasonable accommodations for the employees. The law permits them to exclude these employees from the workplace only if no reasonable accommodation is possible.

Employers and employees might not agree on what “reasonable accommodation” means. For this reason, employers should consult with human resources experts and carry employment practices liability insurance. Expert advice will help avoid these kinds of conflicts, and the insurance will pay for legal defense and settlement of resulting employee lawsuits.

Requiring employees to get vaccinated will also have implications for the employer’s obligations under state workers’ compensation laws. On the positive side, a vaccinated workforce should reduce the employer’s exposure to claims that an employee got the virus on the job.

On the negative side, some employees may experience adverse side effects. Since the vaccine would be a job requirement, the employee could make a claim for workers’ comp benefits due to the adverse reaction. In addition, the employer may have to pay the worker for the time spent getting vaccinated and for the cost of the injection.

What you can do

Employers can protect themselves by following these guidelines:

  • Follow federal and local health guidelines for the vaccine.
  • Vary the requirements depending on work conditions and locations, such as requiring vaccines for those who regularly interact with the public but making them optional for remote workers.
  • Accommodate employees unable to get the vaccine or resistant to it, to the extent you reasonably can without endangering other employees or the public.
  • Apply the requirements consistently to all employees.

No one wants to catch or spread this virus. Employers can help halt the spread by thoughtfully addressing the issue of vaccinating employees.

COVID-19 Relief Bill Extends Unemployment Benefits, PPP and More

COVID-19 employee benefits

The $900 billion COVID-19 relief bill, passed by Congress and signed into law on Dec. 27, includes a number of provisions that affect employers and their workers in terms of paid sick leave and Emergency Family and Medical Leave Act provisions.

The legislation also boosts unemployment benefits to out-of-work Americans, as well as reopening and expanding the Paycheck Protection Program that was introduced in March as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Paid sick leave and family medical leave

The new law has not extended the obligation for employers to provide paid emergency paid sick leave and expanded family and medical leave beyond Dec. 31, 2020, instead making it voluntary after that date.

From Jan. 1, employers can continue receiving tax credits if they provide emergency paid sick leave (EPSL) and emergency family medical leave (EFML) to employees for COVID-19-related purposes through March 31. Here are the caveats:

  • Tax credits will be available for leave granted to employees who did not already exhaust 80 hours of EPSL and 12 weeks of EFML. For example, if a worker who was entitled to 80 hours of EPSL last year used 50 of those hours, they’d have 30 hours left to use between Jan. 1 and March 31 this year.
  • Employers must protect the jobs of any employee that is granted EPSL and EFML.

Other provisions

The legislation extends some CARES Act unemployment programs:

Unemployment benefits ― The new law extends the Federal Pandemic Unemployment Compensation (FPUC) program supplement from December 26, 2020 to March 14. However, instead of receiving $600 a week under the original program, benefits will be $300 per week.

Gig worker unemployment benefits ― The law also extends the Pandemic Unemployment Assistance (PUA) program, which covers independent contractors and gig workers who would usually not be eligible for unemployment insurance payments.

This program (originally created by the CARES Act) is also extended to March 14, and then a three-week phase-out period begins and will run until April 5. The law increases the number of weeks independent contractors are eligible for these benefits to 50 from the original 39.

Extra weeks for those whose benefits ran out ― The Pandemic Emergency Unemployment Compensation (PEUC) program, which provides additional weeks of unemployment insurance benefits to individuals who use up all of their state unemployment benefits, will be extended until March 14.

The law also increases the number of benefit weeks to 24, from 13 under the original version of the program. After March 14, this program will be phased out over three weeks until April 5.

More money ― Taxpayers with annual incomes below $75,000 will receive a $600 check, plus another $600 per dependent child. Payments are phased out for people with incomes in excess of $75,000.

Paycheck Protection Program (PPP) part II ― The law also sets aside $284 billion for forgivable loans to struggling businesses as part of a second PPP. Companies that receive funds will have to use the money on payroll and other specific expenses if they want the loan to be forgiven.

Depending on the loan, employers will have either eight or 24 weeks after receiving the loan to spend it on approved expenses.

But PPP part 2 does have some additional prerequisites that differ from the original. It lowers the employee threshold for businesses to 300 employees or fewer (down from 500). Additionally, the maximum loan is now $2 million, compared to $10 million under the original PPP.

Qualifying expenses are also different in this version, which means any business thinking about applying needs to read all the fine print.

 

New Law Imposes New COVID-19 Reporting Requirements

covid-19

California employers already have a lot to digest after Cal/OSHA issued sweeping new COVID-19 safety regulations in November.

Now they face additional requirements starting Jan. 1, 2021, thanks to a new law that expands notification requirements and gives Cal/OSHA the authority to issue stop-work orders on workplaces that have COVID-19 outbreaks. Here’s what you need to know to be prepared in case your workplace sees a flare-up.

California employers already have a lot to digest after Cal/OSHA issued sweeping new COVID-19 safety regulations in November. Now they face additional requirements starting Jan. 1, 2021, thanks to a new law.

AB 685 expands Cal/OSHA’s authority to issue stop-work orders to workplaces it deems a COVID-19 “imminent hazard.” It also requires employers to send notices to a number of parties (state agencies, local authorities, employees, contractors, and more) if the employer has coronavirus infections in any of its facilities.

The law, which takes effect on January 1, 2021, covers a lot of territory and employers need to understand their obligations if any of their employees test positive to avoid penalties, fines or possible legal action. Here are the main points to be aware of:

Employee notice requirements

The new law requires employers who learn of an employee’s COVID-19 infection to send out notifications to all employees and subcontracted workers who were on-site at the same time as the infected employee. An infected employee (or qualifying individual in the law) is defined as any person who has:

  • A laboratory-confirmed case of COVID-19,
  • A positive COVID-19 diagnosis from a licensed health care provider,
  • A COVID-19-related order to isolate provided by a public health official, or
  • Died due to COVID-19, determined by a county public health department.

The notice must provide information regarding COVID-19-related benefits the employees may be eligible for under federal, state, and local laws, such as:

  • Workers’ compensation benefits,
  • COVID-19-related leaves,
  • Company sick leave,
  • State-mandated leave, and
  • Supplemental sick leave.

The notification must also include the employer’s COVID-19 disinfection and safety plan.

Public health agency notification

The new law also requires that employers notify their local public health agency within 48 hours of learning of an “outbreak” among its workers. An outbreak is defined as: At least three probable or confirmed COVID-19 cases within a 14-day period at a worksite.

Notifications must include:

  • Information about the worksite – name of company, business address, and North American Industry Classification System (NAICS) industry code.
  • Names and occupations of workers with COVID-19.
  • Additional information requested by the local health department as part of their investigation.

If there are additional laboratory-confirmed COVID-19 cases at the workplace, the employer will once again need to send notice to the local health department.

Expanded Cal/OSHA authority

AB 685 grants Cal-OSHA authority to close workplaces that “constitute an imminent hazard to employees” due to COVID-19.

But the stop-work order must be limited to the immediate area in which an “imminent hazard exists.” Cal-OSHA is not authorized to bar entry to any areas outside the hazard area.

When issuing a stop-work order the agency must post a notice in the workplace. Entry will only be permitted for cleaning, disinfecting, and eliminating the danger.

The timeline for issuing serious citations is also greatly reduced. Typically, whenever Cal/OSHA plans to issue a serious citation it has to provide notice and give the employer 15 days to provide additional evidence to refute the need for a serious citation.

For COVID-19 serious citation, Cal/OSHA will not have to provide this notice, meaning that will not have 15 days to mount a defense.

Your to-do list

You should start drafting employee COVID-19 notices, particularly what would be boilerplate information, the preamble about the outbreak as well as benefits the employees can tap.

Also, you need to be prepared to notify public health authorities if you have an outbreak.

Finally, if you are being investigated for COVID-19-related safety violations, it would be wise to produce all backup documents to inspectors during the probe as you won’t have the usual 15 days to mount a defense if you are cited for a serious violation.

What Companies are Doing for Holiday Parties During Pandemic

Christmas party Pandemic

One of the hallmarks of the holiday season is the company Christmas party, but with the COVID-19 pandemic in hyperdrive, many companies are rethinking their plans.

A number of businesses have cancelled their parties altogether, but other managers feel that in light of this very difficult year for many people, a company Christmas party might be just what employees need to lift their spirits for a while.

On the other hand, with the Centers for Disease Control even recommending that people not get together for family celebrations like Thanksgiving and Christmas, an office party would completely go against those recommendations.

Also, you could face liability and potential legal action if you do hold an in-person party and members of your staff come down with COVID-19.

Instead of in-person events, many companies are planning Zoom teleconference “parties” and they are asking their workers to join in by getting dressed up and bringing their favorite beverages and snacks to the online do.

According to Challenger, Gray & Christmas, Inc., 55% of human resources professionals surveyed said their company is not having a holiday celebration this year, which is the highest number since the consulting firm started surveying employers about their holiday plans.

Here’s what the survey found:

  • 45% of HR professionals said their company had cancelled holiday party plans due to the pandemic.
  • 3% said cost-cutting was the reason for cancelling their party.
  • 4% said they never host holiday parties.
  • 23% said they were unsure of holiday plans and were awaiting state and local guidance before deciding.

“It is no surprise that many companies are forgoing the holiday party this year,” said Andrew Challenger, senior vice president of Challenger, Gray & Christmas. “It’s difficult to celebrate and implement all the precautions needed to keep everyone safe. The last thing any employer wants is an outbreak due to their year-end party.”

Additionally, the survey found that 55% of respondents continue keeping most of their staff working from home and another 5.5% have all of their employees telecommuting.

When asked when employers plan to bring all workers back to the office, 44% were unsure or did not answer. Another 21% planned to bring all workers back in early 2021, and 8% will wait for a vaccine.

Precautions for an in-person event

The companies that said they would be holding in-person holiday events plan to take steps to reduce the chances of COVID-19 spreading among their workers by taking the following precautions:

  • Requiring social distancing while at the party.
  • Requiring all attendees to wear masks.
  • Providing hand sanitizers, alcohol wipes and face masks.
  • Taking temperatures of all workers when they arrive.
  • Limiting the number of employees at the party.
  • Holding the event in a large area where employees can socially distance from one another (venues should be well-ventilated with several doors and windows).
  • Keeping hand sanitizer in various locations around the office.
  • Hosting outdoor events.
  • Regularly checking the CDC’s website to be up to date on precautions and advice.
  • Keeping up on state and local guidelines to get more accurate information on current case levels in their area.

Other options

Some companies that plan to skip festivities this year have come up with other ways to celebrate and reward their employees during the holidays, including:

  • Organizing virtual gift exchanges or virtual Secret Santa exchanges.
  • Giving away cooking classes or gifts like Apple Airpods or other small electronics (the cost per person will often be less than if you held an actual party and paid for the facility, catering, decorations, entertainment and drinks).
  • Assembling care packages with baked goods or gift certificates and delivering them to employees’ doorsteps.

 

Daunting Emergency COVID-19 Workplace Safety Rules on Tap

Workplace safety

The Cal/OSHA Standards Board is set to vote on new emergency regulations that will impose strict rules on employers to implement safeguards in order to reduce the risk of COVID-19 spreading in the workplace.

The board on Nov. 19 will vote on the sweeping proposal that extends the reach of protections to employer-provided housing and transportation, as well as imposing new reporting requirements on employers who have workers that contract the coronavirus.

The board is expected to approve the new regulations and they could take effect Nov. 30. Employers will therefore need to ramp up quickly to comply with the new rules.

Here are the highlights of the emergency regulations:

  • Physical distancing and mask-wearing are required unless it is not possible to wear masks on the job. If physical distancing is not possible in the workplace, the employer would have to explain why not.
  • Employers must provide face coverings and ensure they are worn by employees over the nose and mouth.
  • At fixed work locations where it is not possible to maintain physical distancing, the employer shall install cleanable partitions that effectively reduce aerosol transmission between employees.
  • Employers must implement cleaning and disinfecting procedures for frequently touched surfaces and objects, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, bathroom surfaces, and steering wheels.
  • Employers will be required to have a written COVID-19 prevention program. Cal/OSHA will allow the program to be incorporated into an organization’s existing injury and illness prevention plan or be stand-alone.
  • Employers must identify and evaluate COVID-19 hazards with participation from employees, and then correct those hazards.
  • Employers must investigate coronavirus cases among their employees. If they discover one of their staff has contracted COVID-19, they will be required to notify all employees or their authorized representatives, independent contractors, or employees at a worksite who might have been exposed, within one day. Workers who may have been exposed must be offered COVID-19 testing at no cost.
  • Employers must report coronavirus cases in their workplaces to local health authorities.
  • Employers must maintain medical records related to COVID-19 and provide those records to the local health department, the California Department of Public Health, Cal/OSHA, and the National Institute for Occupational Safety and Health (upon request).
  • Employers must implement a system of record-keeping to track all COVID-19 cases in the workplace.
  • Employees with COVID-19 symptoms may not return to work until at least 10 days since symptoms first appeared, and not until after 24 hours have passed since the employee had a fever of 100.4 or higher and after all symptoms have passed.

There are even rules for disinfecting and cleaning employee housing and transportation if the company provides them.

The regs also include provisions that are beyond the scope of workplace safety regulations, such as requiring employers to maintain employees’ earnings, seniority and benefits when they are off work because of COVID-19.

Key takeaways

You can find the full proposed emergency regulation here.

With this regulation expected to be approved, California employers may only have until Nov. 30 until the new rules take effect. During that time, companies should:

  • Prepare for new record-keeping requirements,
  • Start writing their COVID-19 prevention programs,
  • Consider implementing testing protocols as per the regulations, and
  • Prepare policies and procedures for notifying affected staff and others of possible COVID-19 exposure.

California’s COVID-19 Tracking Requirement Challenges Employers

COVID-19 tracking

SB 1159, signed into law in September, requires that when a California employer “knows or reasonably should know” that an employee has tested positive for coronavirus, it must report that positive case to its workers’ compensation carrier within three business days.

There is a lot of ground to cover in these reports and the legislation was passed without much publicity, so many employers may not even know about their obligations. And that could cost them: the fine for non-compliance is $10,000 per incident.

The law goes further than merely reporting a positive case: The report must include a number of details that employment law experts say will place a significant reporting burden on employers:

  • The date the employee tested positive;
  • The address or addresses of the employee’s place or places of employment during the 14-day period preceding the positive test, and
  • The highest number of employees who reported to work in the 45 days preceding the last day the employee worked in the workplace.

The task will be made even more difficult if an employee works at multiple worksites, and an employer could have to spend a significant amount of time doing all that detective work.

Making the task even more difficult, California employers will have to go through the same process every time an employee catches COVID-19.

At its essence, the law creates a presumption that employees who suffer illness or death resulting from COVID-19 between July 6 this year and Jan. 1, 2023, contracted the virus at work, which makes them eligible for workers’ compensation benefits. If a worker dies, their dependents will be eligible for workers’ compensation death benefits that range from $250,000 to $320,000 depending on the number of dependents.

The presumption applies to all employees:

(1) who test positive during an outbreak at the employee’s specific place of employment; and (2) whose employer has five or more employees.

The term “injury” below includes illness or death resulting from COVID-19, and all of the following conditions must exist for the presumption to apply:

  • The employee tests positive for COVID-19 within 14 days after a day that they performed labor or services at their place of employment;
  • The date of injury shall be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
  • The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

What is an ‘outbreak’?

An “outbreak” exists if, within 14 calendar days, one of the following occurs at a specific place of employment:

  • If the employer has 100 employees or fewer at a specific place of employment, four employees test positive for COVID-19;
  • If the employer has more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment test positive for COVID-19; or
  • 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.

The Takeaway: Be Prepared

The most important thing is that you are prepared for the paperwork and detective work you’ll have to engage in in case one of your workers’ contracts the coronavirus. You may want to put systems in place now so that gathering the information will be easier and you can set up an efficient system to get the information you’ll need in case of a COVID-19 infection at your workplace.

COVID-19 Workers’ Comp Claims Grow, While Overall Claims Plummet

covid-19 claims

While the number of COVID-19 workers’ compensation cases filed in California continues to grow, total workplace injury and illness claims in the state have fallen nearly 20% so far in 2020 compared to 2019.

Through September, the state had recorded 47,412 COVID-19 workers’ compensation claims, accounting for 11.1% of all claims reported since the start of the year. During that same period, California workers filed 425,280 workers’ compensation claims, down 19% from the first nine months of 2019.

The first COVID-19 cases among California workers were filed in March. They peaked in July and started to decline in August just when parts of the state started opening up on a partial basis. Numbers have continued to fall as you can see at a glimpse of claims counts as of Oct. 21:

  • March: 2,994 (ultimate projected cases for the month: 3,127).
  • April: 4,215 (ultimate projected: 4,382).
  • May: 4,880 (ultimate projected: 5,135).
  • June: 11,761 (ultimate projected: 12,752).
  • July: 14,098 (ultimate projected: 15,253).
  • August: 5,973 (ultimate projected: 6,770).
  • September: 3,316 (ultimate projected: 5,334).

While it’s too early to tell if it’s a harbinger of things to come, the numbers are high enough that employers cannot let their guard down when it comes to preventing the spread of the coronavirus in their workplaces.

Who is filing claims?

The top five sectors reporting COVID-19 workers’ compensation claims during the first seven months of the year are:

  • Health care workers: 16,889 claims (37% of all claims)
  • Public safety/government workers: 6,902 claims (15%)
  • Manufacturing: 3,759 claims (8.3%)
  • Retail workers: 3,593 claims (7.9%)
  • Transportation: 2,255 claims (5%).

Overall claims falling

Due to the severe economic slowdown brought on by the coronavirus pandemic that forced thousands of businesses to shut their doors or have their workers work from home, the number of overall workplace injuries has tumbled.

There were a total of 425,280 workers’ compensation claims filed in California in the first nine months of the year, compared to 526,469 claims in the same period of 2019. That’s a drop of 19.2%. The caseload in September dropped 30% compared to September 2019.

“That decline reflects both the sharp drop in employment, the high number of workers now working from home, and the pandemic-driven slowdown in economic activity in the state,” the California Workers’ Compensation Institute wrote in a report about the numbers.

Handling workers’ comp claims

A new law that took effect in September extends workers’ compensation benefits to California employees who contract COVID-19 while working outside of their homes.

To qualify for the presumption, all of the following conditions must be met:

  • The worker must test positive for or be diagnosed with COVID-19 within 14 days after a day they worked at your jobsite at your direction.
  • The day they worked at your jobsite was on or after June 6.
  • The jobsite is not their home or residence.
  • If your worker is diagnosed with COVID-19, the diagnosis was done by a medical doctor and confirmed by a positive test for COVID-19 within 30 days of the date of the diagnosis.

The takeaway

If you have an employee who is working on site and who tests positive for COVID-19, you should let them know about their rights to file for workers’ compensation if they miss work and/or need treatment.

The state’s insurance commissioner has approved new rules that bar insurers from using any COVID-19 claims against your experience modifier (X-Mod), so it won’t hurt your workers’ compensation experience if a worker files a claim.

The Big Question: Can Employers Require Workers to Vaccinate?

COVID-19 vaccine

As the COVID-19 pandemic rages on and more employers bring staff back to the workplace, many businesses are considering implementing mandatory vaccination policies for seasonal flus as well as the coronavirus.

A safe and widely accessible vaccine would allow businesses to open their workplaces again and start returning to a semblance of normalcy. But employers are caught in the difficult position of having to protect their workers and customers from infection in their facilities as well as respecting the wishes of individual employees who may object to being required to be vaccinated. 

The issue spans Equal Opportunity Employment Commission regulations and guidance, as well as OSHA workplace safety rules and guidance. With that in mind, employers mulling mandatory vaccination policies need to consider:

  • How to decide if such a policy right for the company,
  • How they will enforce the policy,
  • The legal risks of enforcing the policy, and
  • Employer responsibilities in administering the policy.

Proceed with caution

A number of law firms have written blogs and alerts on the subject of mandatory vaccinations, and the overriding consensus recommendation is to proceed with caution.

In 2009 pandemic guidance issued during the H1N1 influenza outbreak, the EEOC stated that both the Americans with Disabilities Act and Title VII bar an employer from compelling its workers to be vaccinated for influenza regardless of their medical condition or religious beliefs — even during a pandemic.

The guidance stated that under the ADA, an employee with underlying medical conditions should be entitled to an exemption from mandatory vaccination (if one was requested) for medical reasons. And Title VII would protect an employee who objects due to religious beliefs against undergoing vaccination.

In these cases, the employer could be required to provide accommodation for these individuals (such as working from home).

Additionally, the employer would have to enter into an interactive process with the worker to determine whether a reasonable accommodation would enable them to perform essential job functions without compromising workplace safety. This could include:

  • The use of personal protective equipment,
  • Moving their workstation to a more secluded area,
  • Temporary reassignment,
  • Working from home, or
  • Taking a leave of absence.

One issue that employment law attorneys say may not have any legal standing is if an employee objects to inoculation based on being an “anti-vaxxer,” or someone who objects to vaccines believing that they are dangerous. In this case, depending on which state your business is located, you may or may not be able to compel an anti-vaxxer to get a vaccine shot.

Protecting your firm

To mount a successful defense of a vaccination policy if sued, you would need to be able to show that the policy is job-related and consistent with business necessity. And that the rationale is based on facts, tied to each employee’s job description and that you enforce the policy consistently without prejudice or favoritism.

Also, you must ensure that any employee who requests accommodation due to their health status or religious beliefs does not suffer any adverse consequences. In other words, you cannot punish someone that is covered by the ADA or Title VII for refusing a vaccine.

Also, you will need to project and safeguard your employees’ medical information, under the law.

The takeaway

A number of employment law experts say that once a vaccine is widely available, most employers will likely have the right to require that workers get it, as long as they heed the advice above about the ADA and Title VII. Until then, you may want to consider following the 2009 guidance.

If you do implement a policy requiring vaccination, consider:

  • Fully covering vaccine costs if they are not fully covered by your employees’ health insurance.
  • Allowing employees to opt out entirely if they have medical or religious objections.
  • In the event of a medical or religious objection, you must engage in an interactive process to determine whether the individual’s objections can be accommodated.
  • Including safeguards for keeping your employees’ medical information confidential.
  • Not abandoning your other efforts to keep your workplace safe, such as the use of social distancing, regular cleaning and disinfecting, and the use of personal protective equipment.

Alert: New Law Creates COVID-19 Workers’ Comp Framework

outdoor workers

Governor Newsom has signed legislation that creates a new framework for COVID-19-related workers’ compensation claims.

SB 1159, which takes effect immediately, partly replaces an executive order that Newsom made on March 18 and which expired on July 5. That order required all employees working outside the home who contracted COVID-19 be eligible for workers’ compensation benefits.

The new law also creates a rebuttable presumption that all cases of COVID-19 among front-line workers be considered work-related for workers’ compensation purposes. Finally, the law creates a rebuttable presumption that a workers’ COVID-19 diagnosis is work-related when there was an outbreak in their workplace during the prior 14 days.

The new law is retroactive to July 6, the day after Newsom’s executive order expired, and is set to expire Jan. 1, 2023.

SB 1159’s presumption that an illness or death resulting from COVID-19 has arisen out of and in the course and scope of employment, can be disputed by the employer if they have:

  • Proof of measures they put in place to reduce the potential transmission of COVID-19 in the workplace,
  • Evidence of the employee’s non-occupational risks of contracting COVID-19,
  • Proof of statements made by the employee, or
  • Any other evidence normally used to dispute a work-related injury.

Employers with fewer than five employees are exempt under the statute.

The law also requires new reporting provisions to allow workers’ compensation claims adjusters to track cases to know when the presumption applies and requires a faster review of claims to accept or deny compensability than is typical.

SB 1159’s three parts

The first part codifies Newsom’s prior executive order that provided a rebuttable presumption of work-relatedness to all employees working outside of the home that contracted COVID-19.

The second provides a rebuttable presumption that front-line workers (like firefighters, law enforcement officers, health care workers, home care workers, and IHSS workers) who contract COVID-19, contracted it in the workplace.

The third creates a rebuttable presumption that worker’s COVID-19 diagnosis is work-related within 14 days of a company outbreak. Under SB 1159, an outbreak is defined as when four employees test positive at a specific place of employment with 100 or fewer employees and, for larger places of employment, when 4% of the employees test positive.

It’s also deemed a workplace outbreak if the employer had to shut down due to a coronavirus outbreak.

Reporting requirements

Under the new law, when an employer “knows or reasonably should know that an employee has tested positive for COVID-19,” they must report to the insurer the following information within three business days, via e-mail or fax:

  • The date the employee tested positive.
  • The address or addresses of the employee’s specific place(s) of employment during the 14-day period preceding the date of their positive test.
  • The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

The Rossi Law Group has the following recommendations for employers in California:

  • Keep track of all locations each employee works at, the number of employees on each day at each location, as well as a log of those that test positive (including the date the specimen was collected).
  • If you are aware of any staff who have tested positive between July 6 and Sept. 17, you have 30 days after Sept. 17 to report the positive test to the administrator and include the same information as in the bullet points above.
  • You must also report to the administrator positive COVID-19 results for employees that are not filing claims. In that case, you must omit personal identifying information of the employee.
  • Provide any factual information to the administrator that could help rebut any claim of work-relatedness.

The law also has some teeth: Anyone who submits false or misleading information shall be subjected to a civil fine up to $10,000.

One last thing…

The governor also signed into law AB 685, which requires employers to report an outbreak to local public health officials. Employers must also report known cases to employees who may have been exposed to COVID-19 within one business day.

COVID-19 Claims Growing Among California Workers

workers' compensation claims

The number of COVID-19 workers’ compensation claims in California has seen a steady climb, reaching a total of 31,612 from when the pandemic started until the end of July, according to the latest figures from the Division of Workers’ Compensation.

In July, 9,515 California workers filed COVID-19 workers’ compensation claims, as well as 74 coronavirus-related worker deaths ― bringing the total to 140 fatalities. The total claims account for 10% of all claims filed between January and July, despite the first claims being filed only in March.

These numbers are fluid and are certain to grow as more claims are filed after the fact, as there are often time lags in claims filings.

For example:

May claims ― As of July 6, there were 3,889 claims, but as of Aug. 10 the number had risen to 4,606.

June claims ― As of July 6, there were 4,438 COVID-19 workers’ comp claims. But as of Aug. 10, that figure for June claims had more than doubled to 10,528. 

Based on these claims development stats, the California Workers’ Compensation Institute projects there could ultimately be 29,354 COVID-19 claims with July injury dates and 56,082 COVID-19 claims with January through July injury dates.

Who is filing claims?

The top five sectors reporting COVID-19 workers’ compensation claims during the first seven months of the year are:

  • Health care workers (40% of all claims)
  • Public safety/government workers (6%)
  • Retail workers (8%)
  • Manufacturing (7%)
  • Transportation (5%).

Handling workers’ comp claims

In early May, Governor Gavin Newsom signed an executive order extending workers’ compensation benefits to California employees who contract COVID-19 while working outside of their homes during the state’s stay-at-home order.

To qualify for the presumption, all of the following conditions must be met:

  • The worker must test positive for or be diagnosed with COVID-19 within 14 days after a day they worked at your jobsite at your direction.
  • The day they worked at your jobsite was on or after March 19.
  • Your jobsite is not their home or residence.
  • If your worker is diagnosed with COVID-19, the diagnosis was done by a medical doctor and confirmed by a positive test for COVID-19 within 30 days of the date of the diagnosis.

Even when an employee is presumed to have become ill from COVID-19 at work, the employer may dispute that conclusion. In such a case, however, you bear the burden of proving that the injury or illness did not occur at work.

The executive order does not apply to COVID-19-related claims, regardless of date of injury, that were accepted by the claims administrator as compensable prior to May 6.

All of the typical workers’ compensation benefits apply:

Medical care ― Reasonable and necessary medical treatment paid for by your employer to help you recover from an injury or illness caused by work.

Temporary disability benefits ― Payments if you lose wages because your injury prevents you from doing your usual job while recovering.

Permanent disability benefits ― Payments if you don’t recover completely.

Supplemental job displacement benefits ― Vouchers to help pay for retraining or skill enhancement if you don’t recover completely and don’t return to work for your employer.

Death benefits – Payments to your spouse, children or other dependents if you die from a job injury or illness.

The takeaway

If you have an employee who is working on site and who tests positive for COVID-19, you should let them know about their rights to file for workers’ compensation if they miss work and/or need treatment.

The state’s insurance commissioner has approved new rules that bar insurers from using any COVID-19 claims against your experience modifier (X-Mod), so it won’t hurt your workers’ compensation experience if a worker files a claim.