Senate Bill 1159

California Passes Senate Bill 1159

The California Legislature recently approved Senate Bill 1159, which will impact COVID-19 cases among all workers. Below is a summary of the four main sections.

Section 1

Establishes a requirement for a study to be completed by the Commission on Health and Safety and Workers’ Compensation regarding the impacts of COVID-19 on the California workers’ compensation system:

• Impacts on indemnity benefits, medical benefits and death benefits
• Effects on different occupational groups
• Preliminary report due Dec. 31, 2021
• Final report due April 30, 2022

Section 2

Codification of Governor’s Executive Presumption Order (Order Number N-62-20), effective Mar. 19, 2020 – July 5, 2020. The only variation from the governor’s prior presumption order are the following changes:

• A serology test can be used to validate claims where a diagnosis is confirmed with a positive test within 30 days.
• A physician’s assistant or nurse practitioner can diagnose COVID-19, but later needs to be confirmed by testing.

Section 3

Creates a rebuttable presumption for claims on or after July 6, 2020, for first responders and healthcare workers providing treatment to patients.

• Covered healthcare employees under this presumption include those who provide direct patient care and custodial employees “in contact” with COVID-19 patients.
• Facilities covered by this section are general acute care hospitals, acute psychiatric hospitals, skilled nursing facilities (including “small house skilled nursing facilities”), intermediate care facilities/developmentally disabled-continuous nursing facilities and hospice facilities as defined by CA Health and Safety Code §1250 (a), (b), (c), (m) or (n).
• Covered healthcare employees include all RNs, EMTs/paramedics, all employees who provide direct patient care for at-home health agencies and providers of in-home supportive services (to the blind, disabled or elderly) outside of the residence of the employee.
• If these facilities get one case, they often have several due to the nature of the work, making it very difficult to dispute even without a presumption.
• Healthcare workers who do not work directly with patients (within 14 days of getting sick) are not covered by this presumption (e.g., administrators, supervisors, kitchen workers, etc.).
• Employees must exhaust COVID-19 benefits before the insurer is liable for temporary total disability payments (see the Families First Coronavirus Response Act and Assembly Bill 1867).
• For further information on Assembly Bill 1867, please review the following resources:
  • COVID-19 Sick Leave Notices 
  • COVID-19 Food Sector Workers Poster 
  • COVID-19 Non-Food Sector Employees Poster 
• The presumption applies up to 14 days after the employee is terminated.
• There is a retroactive 30-day investigation period.
  • If claims are not denied within 30 days, they would be presumed compensable and only evidence obtained after the 30-day investigation period may be used to dispute those claims.
  • After July 5, 2020, the insurers had 90 days to investigate, which is retroactively cut down to 30 days.
• Death benefits do not need to be paid to the state if there are no dependents identified.
• Claims can still be denied if there is a negative test or if there is sufficient evidence to rebut the claim.
• The sunset date is Jan. 1, 2023.

Section 4

A rebuttable outbreak threshold presumption will apply for all other workers.

• Employer must have five or more employees and the positive test must occur within 14 days of the last day worked (excluding any work done from home).
• It applies on or after July 6, 2020 (after the expiration of the Governor’s presumption order).
• The evidence to rebut this could include, but is not limited to, preventative measures in place and non-industrial exposure.
• A positive test must occur during a period of outbreak at an employee’s specific place of employment.
• An outbreak is defined as follows:
  • Within 14 calendar days, four employees test positive (if 100 employees or less).
  • Within 14 calendar days, 4% of workforce tests positive (if over 100 employees).
  • A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health or a school superintendent due to a risk of infection with COVID-19.
• Employees must exhaust COVID-19 benefits before the insurer is liable for temporary total disability payments (see the Families First Coronavirus Response Act and Assembly Bill 1867).
• For further information on Assembly Bill 1867, please review the following resources:
  • COVID-19 Sick Leave Notices 
  • COVID-19 Food Sector Workers Poster 
  • COVID-19 Non-Food Sector Employees Poster 
• The presumption applies up to 14 days after the employee is terminated.
• A 45-day investigation period has been created.
• The insurer does not have to pay death benefits to the state if there are no dependents identified.
• When an employer knows or reasonably should know that an employee has tested positive for COVID-19, they must report it to their claim administrator within three (3) business days via fax or email. The employer:
  • Cannot provide any personal identification information unless the employee alleges that the illness is industrial or files a DWC-1.
  • Must report the date of the positive test.
  • Must report the address of the employee’s specific place of employment during the 14-day period before the positive test.
  • Must report the highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period before the last day the employee worked at each specific place of employment.
  • Will face a $10,000 fine if there are false reports or they fail to submit information.
  • Can contest violations by specified procedures.

Employers must report all of the data noted above for the period of July 6, 2020 to Sept. 17, 2020 if they had an employee test positive during that period. An employer must report the information to their claims administrator within thirty (30) business days via fax or email.

• Employers must report the highest number of employees who reported to work at each of the employee’s specific places of employment on any given workday between July 6, 2020 and Sept. 17, 2020.
• If an employee wants to file a workers’ compensation claim for his or her COVID-19 illness, please have the employee complete and return a DWC-1 claim form, then report the claim through normal channels.
  • CompWest: File a Claim
  • United Heartland: File a Claim

Reporting and Tracking

As noted above, it is critical to report any outbreak to us as soon as possible.

With the adoption of Senate Bill 1159 and Labor Code 3212.88, this form shall be utilized to report information related to an employee testing positive for COVID-19 on or after July 6, 2020. If your place of business is defined in subdivision (a), (b), (c), (m), or (n) of Section 1250 of the Health and Safety Code, you are not required to submit this form for “outbreak” tracking purposes.

Upon completion of this form, you must submit by email or fax. Once an employer knows or reasonably should have known that an employee tested positive for COVID-19, this information must be reported within three (3) business days regardless of your employee’s desire to file a workers’ compensation claim. For testing dates from July 6, 2020 through the effective date of Senate Bill 1159, the employer must report information within thirty (30) business days of Sept. 17, 2020.

CA SB 1159 Reporting Form 

This must be submitted through the following means:

            Email: COVID19@AFGroup.com 

            Fax: 844-618-3636

Senate Bill 1159 Frequently Asked Questions

Q: When does Senate Bill (SB) 1159 go into effect?

A: SB 1159 passed the legislature on Aug. 31, 2020 and was signed into law on Sept. 17, 2020. It went into effect immediately.

Q: Where can I get more information about SB 1159?

A: Additional information is available on our website. The bill itself is located on the website of the California Legislature.

Q: Will I receive updates from AF Group?

A: We will be sending information via U.S. mail and email to our policyholders and by email to our agents. Please make sure that we have the correct physical and email address for your business to avoid delays in communication.

Q: Will I have to report some information about COVID-19 cases to my insurance carrier? What exactly do I need to report, how do I report it and when do I have to report it?

A: With the passage of SB 1159, you will need to report every employee who tests positive for COVID-19 to your claims administrator. Reporting is required within three (3) business days of knowledge of the positive test. The only exceptions to this requirement are businesses that employ less than five employees or certain healthcare employers described in section three (3) of SB 1159. Refer to the last question below which provides more detail on the healthcare employees who are covered by section three (3).  For all other policyholders, the required information to report for each COVID-19 case is the following:

• Date employee tests positive (date the sample was collected for the test)
• Address of employee’s place(s) of employment (where they were in the prior 14 days)
• The highest number of employees that reported to work at the employee-specific place(s) of employment in prior 45 days
• We will additionally request an employee ID number, policyholder name and policy number (not required by law)

We have prepared a form to report your positive COVID-19 cases to us. In addition, please provide an employee identification number so we may avoid duplicate logging of cases.

There is a dedicated email address and fax number for policyholders to report their COVID-19 cases per section 4 of the bill.

• Email address: COVID19@afgroup.com
• Fax Number: 844-618-3636

Q: Do I have to report employees who tested positive for COVID-19 before SB 1159 was enacted?

A: For COVID-19 cases between July 6 and Sept. 17, 2020, policyholders will retroactively need to report:

• Date employee tests positive (date the sample was collected for the test)
• Address of employee’s place(s) of employment (where they were in the prior 14 days)
• The highest number of employees that reported to work at the employee-specific place(s) of employment on any day between July 6, 2020 and Sept. 17, 2020
• We will additionally request an employee ID number, policyholder name and policy number (not required by law)
• This information must be reported by Oct. 29, 2020

As noted above, please use our dedicated email address or fax number set up for policyholders to report their COVID-19 cases per section 4 of the bill.

• Email address: COVID19@afgroup.com
• Fax Number: 844-618-3636

Q: Can you provide training on this bill for us?

A: We are currently developing training and will offer sessions for policyholders and agents at no cost.

• Training will be virtual in a webinar format
• Dates and times are listed above
• A recorded session will be available on our website

Q: Reporting this information will require extra time and work. What if I choose not to report?

A: The Labor Commissioner can fine your company up to $10,000 if you fail to report or if you intentionally submit false or misleading information.

Q: If I previously reported a claim for an employee, do I still need to report it as a positive case? 

A: Yes. We may not know all of the locations where the employee worked during the 14 days prior to the positive test and we also do not know the highest number of employees that worked at each location. This information is needed to determine if an outbreak occurred.

Q: If I report an employee as a positive case and the employee wants to file a workers’ compensation claim, do I have to report a new claim on top of reporting the positive case?

A: Yes. Please submit the claim through your preferred claim reporting channel and be sure to offer your employee a DWC-1 claim form. Submit the completed form to our office as soon as it is available.

• CompWest: File a Claim
• United Heartland: File a Claim

Q: Our operation is a health care facility or business.  Do I need to report positive COVID-19 cases for our employees?

A: It depends on whether your facility or employees meet the definitions outlined in section three (3) of SB 1159. You do not need to report positive cases for your employees if they meet one of those definitions. Those employees would be covered by the presumption granted in a different section of the bill (section 3).

Q: Which healthcare employees are granted a presumption under section three (3) of SB 1159?

A: Covered healthcare employees under this presumption include those who provide direct patient care and custodial employees “in contact” with COVID-19 patients.

Facilities covered by this section are:

• General acute care hospitals
• Acute psychiatric hospitals
• Skilled nursing facilities (including “small house skilled nursing facility”)
• Intermediate care facilities/developmentally disabled-continuous nursing facilities
• Hospice facilities

Covered healthcare employees include all registered nurses, emergency medical technicians and paramedics.

Covered healthcare employees also include all employees who provide direct patient care at home health agencies and providers of in-home supportive services (to the blind, disabled or elderly) outside of the residence of the employee.