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COVID-19 Presumptions

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As discussed in "Sullivan on Comp" Section 5.17 Presumption of Injury –– Public Employee in General and Section 5.18 Presumption of Injury –– Public Employee's Covered Condition, the Labor Code enumerates several presumptions in favor of certain employees. The purpose of these statutes "is to favor a special class of employees whose service is vital to the public interest and whose strenuous work makes them especially vulnerable."[1]

In 2020, the California Legislature passed Senate Bill 1159 (SB 1159), which established a rebuttable presumption for specified employees that illness or death resulting from COVID-19 arose out of and in the course of employment. The Legislature believed that the burden of fighting COVID-19 had fallen disproportionately on a small group of workers in both the private and public sectors. The presumptions were enacted to reduce the barriers to accessing the workers’ compensation system for essential workers suffering from COVID-19.

But the COVID-19 presumptions were never meant to last indefinitely. Originally, they were to be repealed Jan. 1, 2023, but the sunset date was extended to Jan. 1, 2024 by Assembly Bill 1751 (AB 1751). There is no question that employees with COVID-19 claims with dates of injury on or after Jan. 1, 2024 will not be able to establish entitlement to workers' compensation benefits using a statutory presumption. But it probably also means that employees with COVID-19 claims with dates of injury prior to Jan. 1, 2024 will not be able to benefit from the presumptions established in the repealed statutes.

As explained in Section 1.9 California Constitution, the right to workers' compensation benefits is wholly statutory, and all statutory remedies are pursued with the full realization that the Legislature may abolish the right to recovery at any time. A well-established line of authority holds: "The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards [sic], even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered."[2]

A saving clause generally is used in a repealing act to preserve rights and claims that otherwise would be lost. Labor Code §§ 3212.86, 3212.87 and 3212.88, however, do not contain saving clauses. Nothing in the statutes indicates a legislative intent that any rights in them survive beyond Jan. 1, 2024.

Accordingly, effective Jan. 1, 2024, compensability for any COVID-19 claim that has not been resolved by a final order cannot be established by the former COVID-19 presumptions. Employees still may establish the compensability of COVID-19 claims under the standard rules for compensability for nonoccupational diseases. The former COVID-19 presumption statutes are discussed below. For further a detailed discussion of COVID-19 claims, see Section 5.11 Occupational Disease –– COVID-19.

Labor Code § 3212.86 –– Codification of Executive Order

LC 3212.86 generally codified Gov. Newsom's Executive Order N-62-20, although there are some minor differences. LC 3212.86 applied to any employee with an illness related to COVID-19 and deems that an illness or death related to COVID-19 is presumptively compensable if all of these were established (LC 3212.86(a)(b) (i)(2):

  1. The employee performed labor or services at his or her place of employment at the employer’s direction between March 19, 2020 and July 5, 2020.
  2. The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day he or she performed labor or services at his or her place of employment at the employer’s direction.
  3. The place of employment was not the employee’s residence.
  4. If the employee was diagnosed with COVID-19, the diagnosis was done by a licensed physician and surgeon holding an M.D. or D.O. degree, or state licensed physician assistant or nurse practitioner acting under the review or supervision of a physician/surgeon pursuant to standardized procedures or protocols within their lawfully authorized scope of practice, and that diagnosis is confirmed by testing or by a COVID-19 serologic test within 30 days of the date of the diagnosis.

Unlike the executive order, LC 3212.86 allowed COVID-19 to be diagnosed not only by a licensed physician and surgeon, but also by a properly supervised state licensed physician assistant or nurse practitioner.

The presumption could be rebutted by "other evidence" (LC 3212.86(e)). An employer was required to deny liability for a claim of an illness related to COVID-19 within 30 days after the date the claim form was filed. Otherwise, the illness was presumed compensable and the presumption was rebuttable only by evidence discovered subsequent to the 30-day period (LC 3212.86(f)).

The employee could be awarded all regular workers' compensation benefits under LC 3212.86, including full hospital, surgical, medical treatment, disability indemnity, and death benefits (LC 3212.86(c)). If an employee had paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5, or LC 4850 were due and payable. If an employee did not have those sick leave benefits, temporary disability benefits or LC 4800, LC 4800.5, or LC 4850 benefits were paid from the date of disability. There was no waiting period for temporary disability benefits (LC 3212.86(d)(1)).

To qualify for temporary disability or LC 4800, LC 4800.5, or LC 4850 benefits, the employee had to satisfy either of these (LC 3212.86(d)(2)):

  1. If the employee tested positive or was diagnosed with COVID-19 on or after May 6, 2020, she or he was certified for temporary disability within the first 15 days after the initial diagnosis, and recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
  2. If the employee tested positive or was diagnosed with COVID-19 before May 6, 2020, she or he obtained a certification no later than May 21, 2020, documenting the period for which she or he was temporarily disabled and unable to work, and must have been recertified for temporary disability every 15 days thereafter for the first 45 days following diagnosis.

The temporary disability had to be certified by a physician holding a physician’s and surgeon’s license issued per Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code (LC 3212.86(d)(3)).

Labor Code § 3212.87 –– Presumption for Front-line Workers

LC 3212.87 established a COVID-19 presumption for California front-line workers. Specifically, it covered (LC 3212.87(a)):

  1. active firefighting members, whether volunteers, partly paid or fully paid, of all of these departments:
    1. a fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision;
    2. a fire department of the University of California and the California State University;
    3. the Department of Forestry and Fire Protection (Cal Fire);
    4. a county forestry or firefighting department or unit;
    5. the Department of State Hospitals;
    6. the Department of Developmental Services;
    7. the Military Department;
    8. the Department of Veterans Affairs (CalVet).
  2. active firefighting members of a fire department that serves a U.S. Department of Defense installation and who are certified by the U.S. Department of Defense as meeting its standards for firefighters;
  3. active firefighting members of a fire department that serves a National Aeronautics and Space Administration (NASA) installation and who adhere to specified training standards;
  4. active firefighting members of a fire department that provides fire protection to a commercial airport regulated by the Federal Aviation Administration (FAA) and are trained and certified by the State Fire Marshal as meeting the specified standards;
  5. specified peace officers who are primarily engaged in active law enforcement activities;
  6. fire and rescue services coordinators who work for the Office of Emergency Services (OES);
  7. an employee who provides direct patient care, or a custodial employee in contact with COVID-19 patients, who works at a health facility;
  8. an authorized registered nurse, emergency medical technician-I, emergency medical technician-II or emergency medical technician-paramedic;
  9. an employee who provides direct patient care for a home health agency under Health and Safety Code 1727;
  10. employees of health facilities, other than those described in No. 7, if the employer cannot establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19;
  11. a provider of in-home supportive services, when he or she provides the services outside his or her own home or residence.

In order to receive the presumption under LC 3212.87, employees had to establish that (LC 3212.87(b)(i)(3)):

  1. They performed labor or services at their place of employment at the employer’s direction on or after July 6, 2020.
  2. They tested positive for COVID-19 within 14 days after a day that they performed labor or services at their place of employment at the employer’s direction.
  3. Their place of employment was not their home or residence.

The positive test had to be a PCR (polymerase chain reaction) test or any other viral culture test that has the same or higher sensitivity and specificity as the PCR test approved for use or approved for emergency use by the U.S. Food and Drug Administration (FDA) to detect the presence of viral RNA. It did not include serologic testing, also known as antibody testing (LC 3212.87(i)(2)).

The date of injury was the last date before the positive test that the employee performed labor or services at his or her place of employment at the employer’s direction (LC 3212.87(b)(2)). The presumption extended to such employees following termination of service for a period of 14 days, commencing with the last date actually worked. If those conditions were met, the injury or death related to COVID-19 was presumed to arise out of and in the course of the employment. The presumption was disputable and could be controverted by "other evidence" (LC 3212.87(e)).

LC 3212.87 also required liability for a claim of illness related to COVID-19 to be denied within 30 days after the date the claim form was filed pursuant to LC 5401. If it was not denied within the 30-day period, the illness was presumed compensable, and the presumption was rebuttable only by evidence discovered subsequent to the 30-day period (LC 3212.87(f)).

If the presumption applied, per LC 3212.87(c), an employee was entitled to regular workers' compensation benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits. LC 3212.87 did not cover expenses related to a self-quarantine or mandatory quarantine for employees who did not test positive.

Per LC 3212.87, if an employee had paid sick leave benefits specifically available in response to COVID-19, they must have been used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5, or LC 4850 were due and payable. If an employee did not have those sick leave benefits, he or she was provided temporary disability benefits or other benefits, if applicable, from the date of disability without application of the normal waiting period for temporary disability benefits (LC 3212.87(d)). Unlike for injuries related to COVID-19 before July 6, 2020, there was no requirement for employees to be certified for temporary disability every 15 days for the first 45 days following the COVID-19 diagnosis.

Labor Code § 3212.88 –– Presumption for Outbreak at Place of Employment

LC 3212.88 established a COVID-19 presumption for employees who are not covered by LC 3212.87. It applied to employees who tested positive during an outbreak at their place of employment if the employer had five or more employees (LC 3212.88(a)).

LC 3212.88 specified that an “outbreak” existed if, within 14 calendar days, one of these occurred at a specific place of employment (LC 3212.88(m)(4)):

  1. Four employees tested positive for COVID-19 at a specific place of employment with 100 employees or fewer.
  2. Four percent of the number of employees tested positive for COVID-19 where more than 100 employees reported to the specific place of employment.
  3. The place of employment was ordered to close due to a risk of infection with COVID-19 by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a community college district chancellor, school president, or school superintendent.

The statute clarified that if an employee performed in multiple places of employment within 14 days of her or his positive test, the test must be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak existed at any one of them, that was the employee’s “specific place of employment” (LC 3212.88(m)(3)(B)).

Establishing Presumption

To qualify for the presumption, these had to be established (LC 3212.88(b)(m)(3)(A)):

  1. The employee tested positive for COVID-19 within 14 days after a day that she or he performed labor or services at her or his place of employment at the employer’s direction.
  2. The employee performed labor or services at her or his place of employment at the employer’s direction on or after July 6, 2020.
  3. The employee’s positive test occurred during a period of an outbreak at her or his specific place of employment (that is, the building, store, facility, or agricultural field where she or he performed work at the employer’s direction).
  4. The specific place of employment was not the employee's home or residence, unless she or he provided home health-care services to another individual at her or his home or residence.

The positive test had to be a PCR (polymerase chain reaction) test or any other viral culture test that has the same or higher sensitivity and specificity as the PCR test approved for use or approved for emergency use by the FDA to detect the presence of viral RNA. It did not include serologic testing, also known as antibody testing (LC 3212.88(m)(2)).

If those conditions were met, the injury or death related to COVID-19 was presumed to arise out of and in the course of the employment. The date of injury was the last date before the positive test that the employee performed labor or services at his or her place of employment at the employer’s direction (LC 3212.88(b)(2)). The presumption was extended to any covered employee following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment (LC 3212.88(e)(1)).

The presumption was disputable and, per LC 3212.88(e)(1), could be controverted by "other evidence." LC 3212.88 didn't limit the evidence that could be used to rebut the presumption. Moreover, per LC 3212.88(e)(2), "Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection." As discussed below, however, it was very difficult to overcome the presumption.

LC 3212.88(f) required liability for a claim of such illness to be rejected within 45 days after the date the claim form was filed. If the claim was not denied within the 45-day period, the claim was presumed compensable and the presumption was rebuttable only by evidence discovered subsequent to the 45-day period.

Available Benefits

An employee covered by LC 3212.88 was entitled to benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits (LC 3212.88(c)). If an employee had paid sick leave benefits specifically available in response to COVID-19, they had to be used and exhausted before any temporary disability benefits, benefits under LC 4800, LC 4800.5, or LC 4850, or Education Code (EC) 44977, EC 44984, EC 45192, EC 45196, EC 87780, EC 87787, EC 88192, or EC 88196 were due and payable. If an employee did not have those sick leave benefits, the employee was to be provided the appropriate benefits from the date of disability. The waiting period for temporary disability benefits did not apply (LC 3212.88(d)).

Reporting Requirement

LC 3212.88(i) established reporting requirements for employers. When an employer knew or reasonably should know that an employee tested positive for COVID-19, it had to report all of these within three business days to its claims administrator in writing via electronic mail or facsimile:

  1. An employee tested positive. (For the initial report, the employer must not have provided any personally identifiable information regarding the employee who tested positive for COVID-19 unless he or she asserted that the infection was work related or had filed a claim form pursuant to LC 5401.)
  2. An employee tested positive on a specified date, which was the date the specimen was collected for testing.
  3. During the 14-day period preceding the date of an employee's positive test, the address or addresses of employment where he or she worked had to be specified.
  4. In the 45-day period preceding the last day the employee worked at each specific place of employment, the highest number of employees who reported to work at his or her specific place of employment had to be provided.

The statute also gave employers 30 business days starting Sept. 17, 2020 to report to their claims administrator, in writing via fax or email, when they knew that an employee tested positive for COVID-19 between July 6, 2020 and Sept. 16, 2020. For such positive tests, employers had to report the first three items above and, in place of the fourth, the highest number of employees who reported to work at each of the employee’s specific places of employment on any given workday between July 6, 2020 and Sept. 17, 2020 (LC 3212.88(k)(2)).

The claims administrator was required to use the information reported by the employer to determine if an outbreak had occurred for the purpose of administering a claim (LC 3212.88(k)(1)). The claims administrator had to use the information to retroactively determine if an outbreak occurred from July 6, 2020, to the effective date of the statute for the purpose of applying the presumption (LC 3212.88(k)(2)). A claim was not part of an outbreak if it occurred during a continuous 14-day period in which the requisite number of positive tests was not met. The claims administrator was required to continually evaluate each claim to determine whether the requisite number of positive tests occurred during the surrounding 14-day periods (LC 3212.88(l)).

Penalties for False or Misleading Reporting

LC 3212.88(j) directed that an employer or other person acting on behalf of an employer who intentionally submitted false or misleading information or who failed to submit the required information was subject to a civil penalty of as much as $10,000 to be assessed by the Labor commissioner.

The commissioner could issue a citation following an inspection or investigation. The citation could be served personally or by registered mail. Each citation had to be in writing and describe the nature of the violation, including reference to the statutory provision alleged to have been violated (LC 3212.88(j)(1)).

An employer or person who did not contest a citation could pay to the office of the Labor commissioner the amount specified for the violation within 15 business days after issuance of the citation (LC 3212.88(j)(3)). A party who wanted to contest a citation or the proposed assessment of a civil penalty had to notify the office of the Labor commissioner within 15 business days after service of the citation of the request for an informal hearing. The Labor commissioner or her or his deputy or agent was required to hold a hearing within 30 days (LC 3212.88(j)(2)).

At the end of the hearing, the citation or proposed assessment of a civil penalty had to be affirmed, modified, or dismissed. The decision consisted of a notice of findings, findings and order, and had to be served on all parties within 15 days after the hearing by regular first-class mail. Any amount found due by the Labor commissioner as a result of a hearing became due and payable 45 days after notice of the findings and written findings and order were mailed to the party assessed (LC 3212.88(j)(2)).

A writ of mandate could be taken from the finding to the appropriate superior court, as long as the party agreed to pay any judgment and costs ultimately rendered by the court against the party for the assessment. The writ of mandate had to be taken within 45 days of service of the notice of findings, findings and order (LC 3212.88(j)(2)). If the writ of mandate was unsuccessful, the Labor commissioner was entitled to recover costs and attorney fees (LC 3212.88(j)(4)).

Study on Impact of COVID-19 Claims

In addition to the presumptions, SB 1159 added LC 77.8, requiring the Commission on Health and Safety and Workers’ Compensation to conduct a study of the impact of COVID-19 claims on the workers’ compensation system. The study was to review the overall impact on indemnity benefits, medical benefits, and death benefits, including differences in the effects across different occupational groups. The study also was to include the effect of LC 3212.87 and LC 3212.88. It is available at: https://www.dir.ca.gov/chswc/Reports/2022/RAND-COVID-claims-presumptions.pdf.

See Also

References

  1. ↑ Smith v. Workmen's Comp. Appeals Bd. (1975) 45 Cal. App. 3d 162, 166.
  2. ↑ Rio Linda Union School District v. WCAB (Scheftner) (2005) 70 CCC 999, 1006-07. See also Callet v. Alioto (1930) 210 Cal. 65, 67-78.


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