COVID-19 Presumptions

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QUESTION:

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

ANSWER:

All three presumptions may be rebutted by any evidence. The outbreak presumption in LC 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.

QUESTION:

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

ANSWER:

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 Note that the presumptions established under SB 1159 are repealed as of January 1, 2023. If that is not modified by further legislation, as of that date, 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 could be reinstated and could be subject to constitutional challenge.

QUESTION:

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

ANSWER:

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 is originally diagnosis followed up by testing, it is 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 (frontline 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.

QUESTION:

What sort of peace officers are included in the frontline worker presumption?

ANSWER:

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

These include: (1) 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 (Penal Code § 830.1); (2) members of the California Highway Patrol, the University of California Police Department, employees of the Department of Fish and Game, employees of the Department of Parks and Recreation, and persons employed by the Department of Alcoholic Beverage Control (Penal Code § 830.2(a), (b), (e), (f), and (h)); persons employed by the Division of Investigation of the Department of Consumer Affairs and investigators of the Dental Board of California (Penal Code § 830.3(a); members of an arson-investigating unit of a fire department or fire protection agency (Penal Code § 830.37); parole officers or correctional officers of the Department of Corrections and Rehabilitation, or the Department of Corrections and Rehabilitation, Division of Juvenile Parole Operations ) (Penal Code § 830.5); and a youth correctional officer employed by the Department of Youth and Community Restoration (Penal Code § 830.53(a)).

Not included under the frontlines 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 as are designated by the Director of Forestry and Fire Protection, and firefighter/security guards 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.

QUESTION:

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

ANSWER:

A healthcare facility is defined under Health and Safety Code 1250(a), (b), (c), (m) or (n). The petitioner should look at this statute as it is very long and complicated, if it is possible that an employee may qualify. However, it generally applies to hospitals, including psychiatric hospitals and skilled nursing facilities, which contemplate that a person would be admitted and would stay 24 hours or longer.

QUESTION:

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

ANSWER:

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." Therefore, if an employer’s premises consists of multiple buildings or fields, only the building or field where the employee performed work should be included.

However, LC 3212.88(m)(3)(B) states that if the employee performance work in multiple places of employment within 14 days of the employee’s positive test, then each of those places must be counted to determine whether an outbreak exists.

QUESTION:

Under the outbreak presumption, what is an outbreak?

ANSWER:

An outbreak is defined as at least four employees being tested positive for COVID if the specific place of employment is 100 employees or fewer. If there are more than 100, then for an outbreak to occur, there must be 4 percent of the employees testing positive. These numbers must be met within 14‑day period. There can also be an outbreak if the specific place of employment is ordered to close by the Department of Public Health.

QUESTION:

Which companies are subject to the workplace outbreak presumption?

ANSWER:

This presumption applies to companies that have five or more employees. If the company does not have more than five employees, then the outbreak presumption would not apply.

QUESTION:

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

ANSWER:

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. Thus, it is not knowledge of a diagnosis of COVID-19 that triggers the duty to report, but rather 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. It also gives no guidance as to the employer's duty to investigate. Nevertheless, the employer has a general duty to investigate the possible industrial source of COVID, if it learns that an employee has COVID, as per OSHA requirements.

QUESTION:

Does an employer have to respect the privacy of an employee who tests positive?

ANSWER:

The statute states specifically that if it 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 the claim is work-related or filed a claim form. If the employee asserts the COVID-19 exposure was industrial, then the employee’s identifying information may be disclosed. There are not 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

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

REFERENCES

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