California COVID Presumption Signed and Effective Immediately

SB 1159 was signed yesterday, Thursday, September 17,2020 and is effective immediately.

SB1159 addresses COVID-19 under worker’s compensation, three new Labor Codes (3212.86, 3212.87 and 3212.88) have now been established and a presumption for cases with qualifiers to that presumption. This bill has 5 sections which cover studies, the presumptions, and the effective date (which is immediate).

The Commission shall conduct a study of the impacts claims of COVID-19 have had on the workers’ compensation system, including overall impacts on indemnity, medical and death benefits.

Labor Code 3212.86 shall apply to all cases occurring within 14 days after the last date of work of “any employee with a COVID-19 related illness,” provided that day falls within the period of March 19, 2020 to July 5, 2020.  30 day investigation/decision period, positive COVID-19 test required, rebuttable presumption, temporary disability rules identical to the executive order. Defines “date of injury” the last day worked prior to the positive COVID test.

 Applies to employees injured on or after 7/6/2020 and until 1/1/2023 who are active firefighting members, peace officers, employees who provide direct patient care or custodial employees in contact with COVID-19 patients, who work at a health facility, authorized registered nurses, emergency medical technicians/paramedics, employees who provide direct patient care for a home health agency,  providers of in-home supportive services outside of their residence and *employees of health facilities (other than direct patient care).

A COVID-19 injury is presumed compensable if the employee tests positive for COVID-19 within 14 days after working at the employer’s  place of employment, at the direction of the employer.  The test must be a Polymerase Chain Reaction (PCR) type or other viral testing approved by the FDA and does not include serologic (antibody) testing. Like section 2 – the presumption is disputable and may be controverted by other evidence otherwise the appeals board is bound to find in accordance with the presumption.  If the claim is not rejected within 30 days after the claim form is filed the presumption is rebuttable only by evidence discovered subsequent to the 30-day period.

*The presumption shall not apply if the employer can establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19. This defense applies only to healthcare workers who are not involved in direct patient care, not custodians in contact with COVID-19 patients.

 Applies to injuries occurring on or after 7/6/2020 and until 1/1/2023, excludes employers who have 5 or less employees, and establishes a 45 day period for determining compensability vs. 30.  This section requires that claims administrators identify outbreaks at an employer’s place of business. _ _An “outbreak” is defined as:

  • Employers with 100 or fewer employees at the specific place of employment where 4 employees test positive at specific place of employment

  • Employers with more than 100 employees at the specific place of employment where 4% of employees test positive at specific place of employment

  • The specific place of employment is ordered closed by a local health department, State Department of Public Health, Division of Occupational Safety and Health, or a school superintendent due to risk of infection from COVID-19.

If an outbreak is determined, a presumption for all employees who have tested positive for COVID-19 in that specific place of employment shall apply. The presumption is rebuttable and may be controverted by other evidence from employer including but not limited to evidence of preventative measures in place to reduce potential of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.

An employer is obligated to meet the reporting requirement set forth in this section:

  1. This list should not include the identity of the employee unless the employee has asserted the infection is work related and/or has filed a claim form (DWC-1) with you.  In those instances in addition to listing this individual a claim will need to be filed with your claims administrator.  The list should include:

  2. Starting 9/17/2020, provide via email or facsimile notice to the administrator that an employee tested positive for COVID-19 within 3 business days of your knowledge. DO NOT INCLUDE the identity of the employee unless the employee has asserted the infection is work related and/or has filed a claim form (DWC-1).  As stated in (1) a claim should be reported to your claims administrator in addition to sending the email notice.  The same information as noted in (1)(a)(b) and (c) should be included on this email/ facsimile notice.

  3. The date the employee tested positive (date specimen was taken not the date of results – also would include type of test taken if known)

  4. The specific address of addresses of the employees place of employment covering the 14-day period preceding the date of the employee’s positive test.

  5. The highest number of employee’s per specific place of employment. Noting that if an employee worked multiple places in that 14-day period all addresses worked must be provided.

Makes all of the above sections effective as of the day of the governor’s signature – September 17, 2020


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