Up until this point, employers generally have been identifying work-related COVID-19 cases as those employees who were exposed to or contracted the disease at the workplace or as part of their job responsibilities. After a positive test result, protocol has been followed, including taking proper quarantine measures and reporting those cases to workers’ compensation administrators. Under SB-1159, any employee with a positive COVID-19 test is required to be reported to workers’ compensation, regardless of how the employee contracted the virus (even cases entirely outside of the workplace and job responsibilities). Only employees who work from home are excluded from this rule. As a result, all employee cases will now be counted in the calculation that determines a workplace “outbreak.”
SB-1159 requires that employers with five or more employees in the state of California report information about any employee who tests positive for COVID-19 to their workers’ compensation claims administrator within three days. This is so the claims administrator can track cases and properly contact trace at each worksite. If there are more than four cases in a 14-day period of time, which is considered an “outbreak,” then the presumption that the cases are work related will apply. An “outbreak” exists if one of the following occurs at a specific location of employment within a 14-day period:
- Four employees test positive for COVID-19 (workplace of 100 employees or fewer)
- Four percent of employees test positive for COVID-19 (workplace of more than 100 employees)
- A specific location of employment is 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 school superintendent.
This information is for your reference only. As an employer, you don’t need to do anything with it. All you are responsible for is reporting your cases to your workers’ compensation administrator. Diagnosing an outbreak – including breaking up employees by employment site and evaluating cases within a time period – is your carrier’s responsibility.
So, let’s go back to the employer’s responsibility: reporting. Under the statute, employers are expected to report employees’ positive tests to their workers’ compensation administrator within three days. The statute also applies retroactively to July 6, 2020, so employers are responsible for going back in time and collecting data for all the positive cases in their workplace that they didn’t previously report because they weren’t work-related. Employers have until October 17, 2020 to submit information to their workers’ compensation claims administrators on the retroactive cases. Failure to meet the three-day timeline for new cases and the October 17 deadline for retroactive cases will result in a $10,000 penalty.
Now that you have all the basic information about SB-1159, you might be feeling overwhelmed about what’s ahead. There’s no need to panic. Don’t get scared; be prepared. There are things you can do right now to be in a great position to move forward.
The first thing you should do is get your list of employee COVID-19 cases together, dating back to July 6, 2020. This means that you will have to do some digging, because three months ago, we weren’t focused on documenting non-industrial cases. For the purposes of SB-1159, the employees we are concerned with are ones who actually received a positive test result, not those who were quarantined due to contact training but never tested positive. You do need to follow up with employees who may have been in quarantine but never actually reported positive tests to ensure you are aware of all positives among your employees.
This may be uncomfortable. I know some employers are under the impression that healthcare privacy laws prevent them from asking certain questions, but you can and it is recommended that you do ask your employees questions related to COVID-19 exposure, testing and results. Employers should utilize a spreadsheet to track all positive tests; you will receive a spreadsheet from your carrier, or you can request one from C3.
Employee communication is going to be an important component of implementing this new stature – not only because employers need to track down all employee cases, but also because going through the process of reporting even non-industrial cases to workers’ compensation is likely to lead to confusion among employees about what is considered work-related and what they may be entitled to.
With SB-1159 set to be in effect until January 1, 2023, the earlier employers clarify their practices and get on track with their reporting, the better off they will be. If you are C3 client, you are entitled to a free one-hour consultation with a labor or workers’ compensation attorney. Reach out to me if you are interested in taking advantage of this benefit. We’ll keep you posted on further actions to follow.