Sara Boyns, Workplace Law: When COVID-19 is presumed to be a workers’ compensation injury

Peninsula Premier Admin

Q: An employee told me that he tested positive for COVID-19. Is he automatically entitled to workers’ compensation benefits?

A: Not automatically. On Sept. 17, 2020, the Legislature passed SB 1159, which creates “disputable” presumptions that certain employees’ COVID-19-related illnesses are covered by workers’ compensation.  The presumptions differ based on the employee’s job position and only apply if the employee meets certain criteria. The presumptions do not apply if an employee works remotely at his or her own home.

For firefighters, peace officers, emergency medical technicians and certain health care workers, the presumption applies if the employee tests positive for COVID-19 within 14 days after the employee performed work at the employee’s place of employment at the employer’s direction. If an employee of a health care facility does not provide direct patient care, the presumption only applies if the employee had contact in the past 14 days with a patient who tested positive for COVID-19.

For all other employees who work for employers with at least five employees, the presumption applies if:

• The employee tests positive for COVID-19 within 14 days after the employee performed work at the employee’s place of employment at the employer’s direction; and

• The positive test occurred during a period of an “outbreak” at the employee’s specific place of employment.

A COVID-19 “outbreak” occurs if, within 14 calendar days, one of the following occurs:

• Four employees test positive for COVID-19 (if the employer has 100 employees or fewer at a specific place of employment); or

• Four percent of the number of employees who reported to the specific place of employment test positive for COVID-19 (if the employer has more than 100 employees at a specific place of employment); or

• A specific place of employment is ordered to close by a local public health department, the state Department of Public Health or Cal/OSHA due to risk of infection with COVID-19.

Regardless of whether a presumption applies, employers must give an employee a DWC-1 form within one working day after it becomes aware that the employee tested positive for COVID-19. The employer must then report the positive result to its claims administrator within three business days, by providing the following information:

• An employee has tested positive. Do not disclose the employee’s identity unless the employee asserts the infection is work-related;

• The date the employee’s specimen was collected for testing;

• The address of the employee’s place of employment during the 14-day period preceding the date of the employee’s positive test;

• The highest number of employees who reported to work at the employee’s place of employment in the 45-day period preceding the last day the employee worked.

Any additional information the employer has about how the employee contracted COVID-19 should also be provided to the claims administrator. If a worker meets the above criteria for the presumption to apply, the employer’s workers compensation insurance carrier will have up to 30 (health care employees) or 45 (all others) days to investigate and decide whether to accept or deny a claim. If the claim is not rejected within 30 or 45 days, an injury or illness is presumed compensable, and an employer can then rebut that presumption only with evidence it discovered after the applicable period.

Sara Boyns is a lawyer with Fenton & Keller in Monterey. This column is intended to answer questions of general interest and should not be construed as legal advice. Mail queries to “Workplace Law,” c/o The Monterey Herald, Box 271, Monterey 93942 or to email@fentonkeller.com.

Contributed by local news sources

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