Flash Report: Coronavirus Presumption Becomes Urgency Measure

The Legislature’s plan to codify and expand Governor Gavin Newsom’s executive order creating a rebuttable presumption that COVID-19 cases are work-related, has passed the Legislature. It is heading to Governor Newsom’s desk. 

 

SB 1159 by Sen. Jerry Hill (D-San Mateo) cleared both houses in the final hours. The bill is an urgency measure and will take effect with the Governor’s signature. It will sunset on January 1, 2023 (for past coverage, see Coronavirus Presumption…).

 

Opposition Coalition’s “NASCAR Letter”

Some of the bill’s provisions – those related to extending the executive order were largely noncontroversial—they covered frontline workers such as first responders, healthcare providers, and other essential employees. However, SB 1159’s proposal to create a general presumption for all workplaces is opposed by a broad range of public and private sector employer interests, including insurance interests, who say the trigger mechanism is unworkable. 

 

The bill’s final version eases the definition of an “outbreak” to determine if the presumption applies to a claim for COVID-19. Initially framed as a “5 and 5” provision, the bill’s final amended version uses a “4 and 4” standard for defining an outbreak. Under the provision, the presumption would trigger if at least four employees test positive for COVID-19 over two weeks in a specific workplace of 100 or fewer employees. 

 

An outbreak will be designated for larger employers if at least 4% of the workforce tests positive over 14 days. Opponents (see image) content that such a policy is administratively burdensome and applies the presumption to workplaces regardless of the actual risk presented. 

 

The amendments also added that a health department or Cal/OSHA order shutting down a place of employment due to the risk of a COVID-19 infection will constitute an outbreak and trigger the presumption. 

 

The bill maintains the 30-day claim review limit in the Governor’s executive order but provides 45 days for employers covered by the proposed expansion. Employers have 90 days to review non-COVID-19 workers’ comp claims.

 

Challenging Claims

 

The final version of the bill does specify that “evidence relevant to controverting the presumption may include, but are not limited to, evidence of measures in place to reduce the potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.” If the claim was not rejected during the initial 45-day review, then evidence to rebut the presumption must have been discovered subsequent to that review period. 

For some healthcare employers, the final amended version holds that the “presumption shall not apply if the employer can establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19. The provision does not apply to acute care hospitals, acute psychiatric hospitals, skilled nursing facilities, intermediate care facilities, or hospice facilities. 

 

The bill does require a positive test or diagnosis within 14 days of the employee’s last day of work at the place of employment, which cannot be the employee’s home or residence. 

 

The bill’s final version retains a provision requiring employees to use any paid sick leave or salary continuation benefits before getting temporary disability benefits for a claim. “If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4850 benefits, if applicable, from the date of disability. There shall not be a waiting period for temporary disability benefits,” the bill reads. All other workers’ comp benefits are unaffected and apply to the claims. 

 

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