COVID-19 Presumptions — FAQs

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FAQs

The enactment of SB 1159 has raised a lot of questions. We have compiled answers to the most frequently asked questions in this section. The DIR also provides answers to frequently asked questions relating to SB 1159 on its website.

What evidence may be used to rebut the COVID-19 presumptions?

All three presumptions may be rebutted by any evidence. The outbreak presumption in Labor Code § 3212.88 adds language that such evidence "includes, but is not limited to, evidence in place to reduce the transmission of COVID-19 in the employee's place of employment and evidence of an employee's nonoccupational risk of COVID-19 infection." This extra language appears to be a matter of guidance but does not limit the scope of available discovery.

Does the codification of the governor's order mean that it is no longer subject to constitutional challenge?

Yes, it seems so. There was some question as to the constitutionality of the governor's order. The Legislature has plenary power over the workers’ compensation system under the California Constitution. Now that the Legislature has effectively codified the governor’s order, it has gone through the proper procedure and is not subject to constitutional challenge. Note that the presumptions established under SB 1159 are repealed as of Jan. 1, 2023. If, as of that date, that period is not extended by further legislation, the presumptions would no longer have effect, regardless of the state of litigation of any particular case, absent a final order. If that were to happen, the governor's order would remain, and constitutional challenge again would be an issue.

What kind of testing for COVID-19 is required for the presumption to apply?

Under the governor's order and under SB 1159, for dates of injury before July 6, 2020, there must be a positive test. If there was a diagnosis followed by testing, it's specifically stated that a serologic test is allowed. This is otherwise known as antibody testing, and it shows whether a person has had COVID at some point.

Under the presumptions for dates of injury on or after July 6, 2020 (front-line workers or outbreak presumptions), serologic testing is not sufficient. Rather, a PCR (polymerase chain reaction test) or a same or higher sensitivity test is required.

What sort of peace officers are included in the front-line worker presumption?

The statute specifically refers to the peace officers that are covered as being under Penal Code § 830.1, § 830.2(a)(b)(e)(f)(h), § 830.3(a), § 830.37(a)(b), § 830.5(a)(b) and § 830.53(a), who are primarily engaged in law enforcement activities.

Such personnel include:

• sheriffs, deputy sheriffs, police officers, investigators employed in the office of a district attorney, special agents and investigators of the Department of Justice and the attorney general and persons designated as peace officers by the attorney general (§ 830.1);
• members of the California Highway Patrol, the University of California Police Department, employees of the Department of Fish and Wildlife (formerly the Department of Fish and Game), employees of the Department of Parks and Recreation and persons employed by the Department of Alcoholic Beverage Control (§ 830.2(a)(b)(e)(f)(h));
• persons employed by the Division of Investigation of the Department of Consumer Affairs and investigators of the Dental Board of California (§ 830.3(a);
• members of an arson-investigating unit of a fire department or fire protection agency (§ 830.37);
• parole officers or correctional officers of the Department of Corrections and Rehabilitation and the Department of Corrections and Rehabilitation, Division of Juvenile Parole Operations) (§ 830.5);
• youth correctional officers employed by the Department of Youth and Community Restoration (§ 830.53(a)).

Not included under the front-line workers presumption under LC 3212.87 are:

• members of the California State University Police Departments;
• marshals and police appointed by the board of directors of the California Exposition and State Fair;
• persons employed by the Bureau of Cannabis Control;
• employees of the Department of Motor Vehicles;
• investigators of the California Horse Racing Board;
• investigators of the Division of Labor Standards Enforcement designated by the Labor commissioner;
• voluntary fire wardens designated by the director of the Department of Forestry and Fire Protection (Cal Fire);
• firefighter/security guards designated by the Military Department.

We recommend that you review the specific statutes referenced in LC 3212.87 to determine whether any specific peace officer is covered.

Would a private in-house fire brigade or internal private fire department within a business be covered by Labor Code 3212.87?

Privately employed firefighters are not covered by LC 3212.87 –– § 3212.87(a)(1)-(6) specifies the firefighters entitled to the presumption under that section. It covers public firefighters including those employed by a city, county, the University of California, California State University, the Department of Forestry and Fire Protection (Cal Fire), the U.S. Department of Defense, NASA, a fire department at a commercial airport and the California Office of Emergency Services.

Are dispatchers included in the presumption under Labor Code 3212.87?

The presumption under LC 3212.87 applies to "[a]ctive firefighting members of a fire department" or "[p]eace officers … who are primarily engaged in law enforcement activities." Normally, dispatchers would not be included unless they also performed active firefighting duties or were engaged primarily in law enforcement activities.

There is a presumption for employees who provide direct patient care, but only if they work at a health facility. What does this mean?

A health-care facility is defined under Health and Safety Code § 1250(a)(b)(c)(m)(n). The petitioner should review this statute, which is very long and complicated. Generally, the presumption applies to hospitals, including psychiatric hospitals and skilled nursing facilities, where a person would be admitted and generally would stay 24 hours or longer.

Under the outbreak presumption, what constitutes a specific place of employment?

LC 3212.88(m)(3)(A) defines "specific place of employment" as "the building, store, facility, or agricultural field where an employee performs work at the employer's direction." So, if an employer’s premises consists of multiple buildings or fields, only the building or field where the employee performed work should be included.

But LC 3212.88(m)(3)(B) states that if the employee performs work in multiple places of employment within 14 days of his or her positive test, each of those places must be counted to determine whether an outbreak exists.

Under the outbreak presumption, what is an "outbreak"?

If the specific place of employment has 100 employees or fewer, an outbreak is defined as at least four employees who tested positive for COVID-19. If there are more than 100, an outbreak is 4% of employees testing positive. These numbers must be tallied within a 14‑day period. Also, an outbreak occurs if the 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.

What companies are subject to the workplace outbreak presumption?

The presumption applies to companies with five or more employees. The outbreak presumption does not apply to smaller companies.

If the employer is a school district, are students counted in determining whether there is an outbreak?

LC 3212.88(m)(4) provides an outbreak occurs if: (a) four "employees" test positive for COVID-19 if the employer has 100 or fewer employees; (b) four percent of "employees" test positive if the employer has more than 100 employees; or (c) the specific place of employment is closed. Only positive "employees" are counted for the purposes of determining whether there is an outbreak. Students at a school would not be counted. Of course, if the school is closed due to an outbreak, then the school employees would be entitled to the presumption.

When must an employer report a positive COVID-19 test to the administrator?

LC 3212.88(i) requires an employer to report to the claims administrator when it knows, or reasonably should know, that an employee has tested positive for COVID-19. Knowledge of a diagnosis of COVID-19 does not trigger the duty to report, only knowledge of a positive test. Furthermore, the employer must have knowledge of a PCR test, rather than an antibody test, before it must report.

The statute does not say under what circumstances the claims administrator "should know" of a positive test. Also, it offers no guidance about the employer's duty to investigate. Nevertheless, the employer has a general duty to investigate the possible industrial source of the virus if it learns that an employee has COVID-19, per OSHA requirements.

May an employer avoid the reporting requirements of LC 3212.88(i) by accepting every workers' compensation claim or providing benefits to every employee who tests positive?

LC 3212.88(i) establishes the reporting requirements. There is nothing in the statute allowing an employer to avoid the reporting requirements by accepting all COVID-19 claims.

Are police stations, fire departments or other employers with employees covered by LC 3212.87 required to report under LC 3212.88(i)?

While LC 3212.87 covers frontline workers (firefighters, peace officers and hospital workers), it wouldn't necessarily cover all employees who work at fire departments, police stations, or health facilities. Employees not covered by LC 3212.87 could only receive a presumption if there's an "outbreak" under LC 3212.88, and the reporting requirements are intended to allow claims administrators to determine whether there's an outbreak.

Note, however, that LC 3212.87(a)(10) states that health facility employees who do not provide direct patient care or are not custodial employees are not entitled to a presumption 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. If the employer can make this showing, then the presumption does not apply for these employees. Instead, their claims must be evaluated pursuant to Sections 3202.5 and 3600.

What are the reporting requirements for general/special employers?

LC 3212.88(i) requires an employer to report information when it knows or reasonably should know an employee has tested positive for COVID-19. However, the statute doesn't explain whether general or special employers or both are required to report. This issue isn't addressed in the legislative history, and the Labor Commissioner, who is charge with enforcing the reporting rules, hasn't provided any clarification.

Nevertheless, the general rule is that general and special employers are jointly and severally liable for injuries sustained by employees. If both the general and special employer have access to the required information, then both should report until the issue is further clarified.

Must an employer respect the privacy of an employee who tests positive?

The statute states specifically that if the employer becomes aware of a positive COVID-19 test, it must report it to the administrator, but must not disclose the name or other identifying information of the person who has tested positive. That changes, however, if the employee asserts that the claim is work related, or filed a claim form. If the employee asserts that the COVID-19 exposure was industrial, his or her identifying information may be disclosed. There are no special protections in this statute for an applicant's privacy after a claim form is filed, and it may be handled like any other claim.

SEE ALSO

• COVID-19 Presumptions
• When Is COVID-19 Work Related?
• The Basic Rule — Increased Risk and the General Public

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