In order to provide our clients with the best possible and most up-to-date laws affecting workers’ compensation defense, the topic of the hour, or more appropriately deemed, the year, requires another update based on codification of Governor Gavin Newsom’s Executive Order of N-62-60 into law. Senate Bill 1159 enacts the COVID-19 presumption, signed into law on September 19, 2020. What does that mean for employers, insurance carriers and third-party administrators as it pertains to COVID-19 claims?
The prior Executive Order from Gov. Newsom provided a rebuttable presumption to a claim for workers’ compensation benefits arising from an employee testing positive for COVID-19, now codified in Labor Code section 3212.86. SB 1159 further elaborates this presumption for different categories of employees as outlined in four different Labor Code sections, 77.8, 3212.86, 3212.87 and 3112.88 but below is a discussion on the pertinent sections.
Labor Code section 3212.86 requires the third-party administrator to issue a compensability decision within 30 days of the DWC-1 Claim Form being filed. This is drastically different from current law that allows 90 days to accept or deny a claim for workers’ compensation benefits. Further, Labor Code section 3212.86(b) provides an injury arising from a COVID-19 claim includes illness or death from COVID-19 and requires an employee to test positive 14 days after the day the employee performed services or labor at the place of employment. Labor Code section 3212.86(i)(2) clarifies that place of employment does not include an employee’s residence. Not be confused with Labor Code section 3212.88, where the third-party administrator has 45 days to issue a compensability decision if the claimed injury from a COVID-19 positive test occurred after an outbreak at the place of employment.
What about payments of temporary disability due to missed time from work relating to a presumptive COVID-19 claim? Labor Code sections 3212.86(d) and 3212.88(d) indicate if the employee has sick time specifically available in response to COIVD-19, that time must be exhausted by the employee first, before any temporary disability or other indemnity benefits will be paid. Therefore, it is important to check with the employer and insured as to whether the employee has any sick leave specifically as it relates to COVID-19 before picking up any temporary disability or industrial leave benefits. Also, there is no waiting period for payment of temporary disability, therefore, if the COVID-19 claimed injury is presumed and not rebutted, and the employee misses time from work, temporary disability benefits would be owed from the first day the employee is placed off work.
There is a special presumption for essential service providers that is codified in Labor Code section 3212.87. This presumption includes active firefighters (volunteers, partially-paid or fully-paid), peace officers, doctors, nurses, employees of health facilities for either custodial patients, or employees who provide direct care to COVID-19 patients. The presumption also applies to an in-home support service provider, and employees of health care facilities. One way to rebut the presumption is to establish the employee did not have contact with a health facility patient within the last 14 days after testing positive for COVID-19.
Labor Code section 3212.88 applies when there is an outbreak at the employer’s premises and the employer has more than five employees. This section applies to all other employees that are not covered under Labor Code section 3212.86 or 3212.87. An outbreak has been defined statutorily as four employees out of 100 employees (if there are 100 employees or less), OR if the employer has more than 100 employees, then 4% of the number of employees that report to the specific place of employment. Further an outbreak is deemed to have occurred if the place of employment is closed by the local or state health department or by the Division of Occupational Safety and Health.
Finally, it is important to involve the employer in COVID-19 claims now more than ever before. The statute requires the employer to report a positive COVID-19 test to the third party administrator in writing (by email or fax) within three business days, when the employer knows or reasonably should have known an employee has tested positive, along with other required information to be provided from the employer to the third-party administrator, which is further enumerated in Labor Code section 3212.88(i).
If the employer does not provide the requisite information or intentionally provides false or misleading information as it relates to a possible COVID-19 claim, they may be subject to a maximum $10,000.00 civil penalty to be assessed by the Labor Commissioner.
Even though the presumption is rebuttable, there is very little time to accept or deny the claimed COVID-19 reported injury, either 30 days or 45 days. Therefore, this requires diligence by not only the third-party administrator but also the employer. In order to effectively rebut a claimed COVID-19 injury, we would recommend involving your defense attorney at the earliest possible time to help facilitate discovery and obtaining the necessary information to determine if the presumption is rebuttable.
At Yrulegui & Roberts, our California workers’ compensation defense attorneys provide expert, effective legal representation to clients. If you have questions about COVID-19 and workers’ compensation, we are here to help. For a strictly confidential, no commitment initial consultation, please contact our team right away. From our law offices in Fresno, Sacramento, and Bakersfield, we are well-positioned to represent clients all over California’s Central Valley.