New California legislation related to COVID-19 will affect employers and their workers' compensation benefits by shifting the burden of proof that any coronavirus illnesses did not occur at the workplace.
The law signed by Gov. Gavin Newsom shifts the presumption that employees contracting COVID did so at the workplace and therefore are eligible for worker's compensation benefits.
According to attorneys with Kahn, Soares, and Conway, whose firm represents numerous agricultural clients, there are three components to the bill Newsom signed, which codifies an executive order issued in May.
That order established a rebuttable presumption that any COVID-19 diagnosis between March 19 and July 5 was work-related. Under the guidelines, employees were not required to prove they contracted their illness at work. Instead, an employer seeking to have this presumption overturned would have the burden to prove that the employee caught the virus away from the workplace.
Presumptions related to a workplace COVID "outbreak" dating back to July 6 outline what will happen if a given number of employees test positive in a single workplace within 14 days. These outbreaks are defined as four employees testing positive in a workplace of under 100 people, and four percent of the workforce in a business with more than 100 employees within a 14-day period. "Outbreak" is also defined as a public health order that shuts down a place of employment due to a risk of infection.
Locations of employment include enclosed buildings and agricultural fields.
New reporting requirements under the new law stipulates that when an employer with five or more employees "knows or reasonable should know" that an employee tested positive, the employer must inform their worker's compensation carrier within three business days when:
- An employee tests positive;
- The date when the employee tested positive;
- The address of the employee's worksite; and,
- The highest number of employees who reported to work within 45 days of when the employee last worked.
The law makes reporting retroactive so that any employer aware of an employee testing positive on or after July 6, but before Sept. 17 when the law took effect, must report the information above to their claims administrator within 30 days.
The bill also establishes a rebuttable presumption for first responders and health care workers that any positive tests within 14 days of working after July 6 were caused in the workplace. Employers have 30 days from that diagnosis to rebut the claim.