On September 17th, 2020, Governor Gavin Newsom signed Senate Bill 1159 into law.
The bill is considered emergency legislation, which means that it goes into effect immediately. You can read the text of the bill here.
Senate Bill 1159 codifies Executive Order N-62-20, which was issued in May of this year. Executive Order N-62-20 established a presumption of work relatedness for cases of COVID-19 contracted by employees working outside the home between March 19 and July 5th . Senate Bill 1159 will extend that presumption until January 1, 2023.
However, there are some key differences between that Executive Order and SB1159.
To help you understand the bill and how it will affect your organization, we filmed our first Educate & Protect Video Podcast that focuses on the topic along with detailing additional insights below.
Who is Covered?
Senate Bill 1159 establishes a rebuttable presumption for first responders and healthcare workers. This means that cases of COVID-19 contracted by firefighters, peace officers, and employees in the healthcare field who provide care to patients infected with COVID-19 will be considered work related unless evidence to rebut the presumption is submitted timely. For all other employers, the presumption will kick in for employees who test positive during an “outbreak”. An outbreak is defined as 4 or more positive cases within 14 days for employers with under 100 employees, and 4% of employees testing positive during a 14 day period for employers with over 100 employees. A business will also be considered to have an outbreak if it is ordered closed by public health authorities. The presumption and these thresholds are in effect as of September 17, 2020, but they are also retroactive back to July 6th, 2020.
What are my reporting obligations?
Senate Bill 1159 also establishes new reporting requirements for employers. When an employer knows or should have known that an employee has tested positive for the novel coronavirus, it must now file a report with the workers compensation insurance company within three business days. This is the case whether the case is believed to be work related or not, and whether enough employees have tested positive to be considered and “outbreak” or not. The reporting requirement is retroactive back to July 6th, 2020. This means that if any of your employees tested positive between July 6th and now, and you have not made a report to your workers compensation insurer, you must now do so. Failure to comply with the new reporting requirements may result in civil penalties of up to $10,000. Note that employers still have obligations to follow state and local health ordinances regarding transmission mitigation. In addition, if employees do test positive, businesses are required to notify other employees of the positive case, conduct contact tracing so that people who were exposed can self-isolate, and initiate benefits such as emergency sick pay to affected employees. You can find more information regarding employers’ obligations on the pandemic page of our website here.
Timeframes for disputing
Another change implemented by Senate Bill 1159 shortens the time frame insurers have to rebut the presumption of work relatedness laid out in the bill. Depending on the type of employee and the date of the positive test, the presumption must not be rebutted within either 30 or 45 days. This means that it is in a firm’s best interest to report cases as soon as possible. As we noted when Executive Order N-62-20 was signed, only an insurance company may make coverage determinations. Therefore, it is not only a requirement under Senate Bill 1159 to report all positive cases quickly, it is also a best practice. Doing so will give your insurance company the greatest opportunity to determine if there is evidence to rebut the presumption, and to do so if there is.
Conclusion
Senate Bill 1159 lays out new obligations for employers in the ever changing COVID-19 landscape, and some of those obligations are retroactive. It is important to understand your obligations and to move quickly to meet them.
At Cavignac, we have invested heavily in a team of subject matter experts who are here to help you navigate through the facts of our clients’ individual situations, and to help you make the best decisions for your firm.
