When COVID-19 is presumed to be a staff’ compensation damage – Monterey Herald

Q: I was told by a representative that they tested positive for COVID-19. Is he automatically entitled to employee compensation?

A: Not automatically. On September 17, 2020, the legislature passed SB 1159, which makes “controversial” assumptions that the COVID-19-related illnesses of certain employees are covered by employee compensation. The assumptions differ depending on the employee’s job and only apply if the employee meets certain criteria. The assumptions do not apply if an employee works at home.

For firefighters, peace officials, paramedics and certain health care workers, the presumption applies if the employee tests positive for COVID-19 within 14 days of performing the work at the employee’s workplace on the instructions of the employer. If a healthcare facility employee does not provide direct patient care, the presumption applies only if the employee has had contact with a patient who tested positive for COVID-19 in the past 14 days.

For all other employees who work for employers with at least five employees, the presumption applies if:

• The employee tests positive for COVID-19 within 14 days of performing the work at the employee’s workplace on the instructions of the employer. and

• The positive test took place during an “outbreak” at the employee’s specific workplace.

A COVID-19 outbreak occurs if any of the following occurs within 14 calendar days:

• Four employees test positive for COVID-19 (if the employer has 100 employees or fewer in a given job); or

• Four percent of the number of employees who have reported in a particular workplace are positive for COVID-19 (if the employer has more than 100 employees in a particular workplace). or

• A specific workplace must be closed by a local health department, state health department, or Cal / OSHA due to the risk of infection with COVID-19.

Whether or not there is a suspicion, employers must provide an employee with a DWC-1 form within one working day of learning that the employee has tested positive for COVID-19. The employer must then report the positive result to his claims administrator within three working days by providing the following information:

• An employee tested positive. Do not disclose the employee’s identity unless the employee claims the infection is work-related.

• the date the employee’s sample was taken for testing;

• the address of the employee’s place of work for the period of 14 days prior to the date of the employee’s positive test;

• The highest number of employees who reported working at the employee’s workplace in the 45 days prior to the employee’s last working day.

Any additional information the employer has about how the employee contracted COVID-19 should also be made available to the claims administrator. If an employee meets the above criteria for accepting the presumption, the employer’s compensation insurer has up to 30 (healthcare workers) or 45 (all other) days to investigate and decide whether to accept or reject a claim . If the application is not denied within 30 or 45 days, an injury or illness will be deemed to be indemnifiable and an employer can only rebut that presumption with evidence discovered after the applicable time limit.

Sara Boyns is a lawyer at Fenton & Keller in Monterey. This column is intended to answer questions of general interest and should not be construed as legal advice. Email inquiries to “Workplace Law”, c / o The Monterey Herald, Box 271, Monterey 93942 or to [email protected].