On September 17th, the governor of the State of California signed Senate Bill 1159 into law, requiring employers to report any instance of an employee testing positive for COVID-19 – regardless of the employee making a claim for workers’ compensation benefits.
Under SB 1159, Labor Code Section 3212.88 applies to California employers who have 5 or more employees. The new law says that if a COVID-19 outbreak occurs at a place of employment it is assumed employees who test positive for COVID-19 contracted it at work.
This law creates new reporting obligations for employers. Employers are now required to report to their claims administrator via email or fax, when the employer is aware that an employee tested positive for COVID-19. The report must be made within 3 business days.
Employers are required to report:
- Notice that an employee has tested positive. Do not include any Personal Identifiable Information (such as SSN, DOB, etc.).
- The date the specimen was collected for the positive test.
- Positive PCR COVID-19 test or other FDA approved viral test.
- All locations where employee worked at your direction during the 14-day period prior to the positive test result.
- Location name
- Location address
- The highest number of employees who worked at the employee’s specific work location(s) in the 45-day period preceding the last day that the employee worked there.
If an employer is aware of an employee who tested positive prior to the effective date of this statute, between July 6, 2020 and September 16, 2020 they have until October 29, 2020 to report those cases to their claims administrator. The employer reporting requirements are the same as above for items 1 through 3, however the data under 4 should indicate the highest number of employees who reported to each specific work location during the period of between July 6, 2020 and September 17, 2020.
Failing to submit this information, or providing false or misleading information can result in an employer being assessed with a $10,000 civil penalty and/or a citation.
An outbreak occurs if, within a 14-day calendar period, one of the following happens:
- Employers with 100 employees or less at a specific work location and 4 or more employees test positive at that specific location; or
- Employers with more than 100 employees at a specific work location and at least 4% of employees test positive at that specific location; or
- A specific place of business is closed by local public health department, State Department of Public Health or school superintendent due to risk of infection with COVID-19.
A “specific work location” means the building, store, facility or agricultural field where the employee worked at your direction. Many workers may transition between multiple places of employment during their shift. So tracking the locations that they are required to work at is essential.
In addition, the employee must:
- Have worked on or after 7/6/2020; and
- Have worked outside their home or residence at the employer’s direction; or worked to provide home health care services to another individual at their home or residence; and
- Have a positive PCR COVID-19 test or other FDA approved viral test (does not include serologic (antibody) test) within 14 days after performing the labor or services; and
- The positive COVID-19 test must have occurred during a period of outbreak at the employee’s specific place of employment.
Claims administrators are tasked with using the reported information to calculate whether an outbreak has occurred. So providing timely, detailed reporting is critical.
Additionally, if a claim becomes accepted under this section an employee is required to exhaust any paid sick leave benefits specifically available in response to COVID-19 before temporary disability benefits may be paid.
This reporting is entirely separate and distinct from reporting of a workers’ compensation claim. If an employee indicates or alleges that COVID-19 was contracted in the course of their employment, the employer must provide a DWC-1 claim form to the employee and report this claim to their claims administrator.
Contact ProAction Insurance to learn about your workers’ comp insurance carrier’s mandatory COVID positive cases requirements.