News & Updates: Rebuttable Presumption that Employees Contract COVID-19 at Work Extended Through January 1, 2023

A new law that became effective September 17 has made it easier for employees to recover workers’ compensation benefits if they contract COVID-19 after working at an employer’s worksite.

May Executive Order

Normally, to be entitled to workers’ compensation benefits, an employee has the burden to prove that the employee’s injury or illness arose out of and was in the course of employment. In response to the COVID‑19 public health crisis, Governor Newsom issued an Executive Order in May 2020 that shifted this burden of proof to employers by creating a rebuttable presumption that illness arose out of employment where an employee contracted the COVID-19 virus within 14 days of working at an employer’s worksite. Rather than employees having to prove that they contracted COVID-19 in connection with work, employers had to disprove that they did.

While the Executive Order expired on July 5, 2020, California has now enacted Labor Code Section 3212.88 which extends the rebuttable presumption for claims relating to work performed on or after July 6, 2020. The new law, enacted as part of SB 1159, applies to employers with five or more employees. In addition to extending the rebuttable presumption to January 1, 2023, Section 3212.88 also requires employers to report to their workers’ compensation carriers all instances when an employer learns that an employee tests positive for COVID-19.

Rebuttable Presumption

Section 3212.88’s rebuttable presumption is more limited than the presumption in the Executive Order which applied to all employees who tested positive within 14 days of being at work. Under Section 3212.88, a rebuttable presumption arises only where an employee tests positive for COVID-19 during a period of an “outbreak.” An “outbreak” exists in two circumstances: (1) where 4 percent of employees at a worksite (or 4 employees for employers with fewer than 100 employees at a worksite) test positive for COVID-19 within a 14 calendar day period, or (2) where an employee tests positive within 14 days of a state or local public health department, Cal/OSHA, or a school superintendent ordering the employee’s worksite to close due to a risk of infection with COVID-19.

Even if an employee tests positive for COVID-19 during an outbreak at a worksite, an employer may still attempt to show that the employee’s illness did not arise from work. Section 3212.88 provides that an employer can overcome the rebuttable presumption that an employee’s infection was work-related by presenting evidence of measures the employer took to reduce potential transmission of COVID-19 in the employee’s place of employment and/or evidence of an employee’s nonoccupational risks of COVID-19 infection—e.g., that the employee engaged in activities or had contacts outside of work that increased the risk of infection. Whether the illness was work-related will ultimately be determined by a workers’ compensation judge.

Reporting Requirements

Section 3212.88 imposes significant reporting requirements for positive test results since July 6, 2020, with penalties for failing to make required reports. When any employee tests positive for COVID-19 on or after September 17, the employer must report the following information to its workers’ compensation claims administrator via email or fax within three business days of learning of the positive test result:

1. An employee has tested positive (Note that the employer should not identify the employee who tested positive for COVID-19 unless the employee asserts the infection was work-related or has submitted a workers’ compensation claim form.);
2. The date that the employee tested positive, which is the date the specimen was collected for testing, not the date the results were received;
3. The specific address or addresses of where the employee worked during the 14-day period preceding the date of the employee’s positive test; and
4. The highest number of employees who reported to work at the employee’s specific work location(s) in the 45-day period preceding the last day the employee worked at each specific work location. (Note: For employees testing positive from July 6, 2020 through September 16, 2020, employers must report the highest number of employees who reported to work at each of the employee’s work location(s) on any given work day within that date range.)

For employees who tested positive between July 6, 2020 and September 16, 2020, employers have until October 17, 2020 to report the above information to their carrier.

The reporting requirements of the new law are in addition to the requirements for employers to report positive COVID-19 test results to public health agencies and to Cal/OSHA.