SB 1159 CREATES NEW REPORTING REQUIREMENTS* FOR POSITIVE COVID-19 TESTS IN THE WORKPLACE

by Victoria Dolan

Employers with 5 or more employees must report all known/reasonably known employee positive COVID-19 tests occurring on or after July 6, 2020 to their claims administrator (i.e. insurance carrier) in writing. This is not the same as filing a DWC-1 claim form. Effective immediately, employers must notify the claims administrator via email or fax within three business days of learning about the positive test and provide all of the following information:

  1. An employee has tested positive. For purposes of this reporting, the employer shall not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless the employee asserts/indicates the infection is work related or has filed a claim form (DWC-1).
  2. The date that the employee tests positive, which is the date the specimen was collected for testing.
  3. The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test.
  4. 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.

Employers have 30 business days to gather this information retroactively (i.e. for all known positive COVID-19 tests with specimen collection dates on or after July 6th) and submit it to their claims administrator/carrier. Except that for item #4, employers should report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given work day between July 6, 2020, and September 17, 2020.

The claims administrator will be responsible for determining if there has been an outbreak which 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, 4 employees test positive for COVID-19.
  • If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment, test positive for COVID-19.
  • 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.

If the claims administrator determines that there was an outbreak, affected employees** with positive tests during the outbreak will be presumed eligible for benefits once any FFCRA emergency paid sick leave benefits (or California COVID-19 supplemental paid sick leave benefits for employees not already covered under the FFCRA) have been exhausted. If an employer believes the employee contracted COVID-19 outside of the workplace, despite the existence of an outbreak, they can attempt to dispute this presumption by providing evidence of any of the following to the claims administrator/carrier:

  • evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment
  • evidence of an employee’s nonoccupational risks of COVID-19 infection

SB-1159 – Workers’ Compensation: COVID-19: critical workers.

*These reporting requirements are in addition to any existing requirements to report COVID-19 cases to public health agencies.
**Note employees in higher risk positions such as emergency first responders (e.g. firefighters, police/peace officers), health care professionals, and home health care workers are not subject to the work site outbreak qualifier and will generally be presumed eligible for workers’ compensation benefits unless the employer can provide evidence to the contrary.