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As discussed in "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/5.17 Section 5.17 Presumption of Injury –– Public Employee in General] and [https://app.sullivanoncomp.com/soc/index/title/5.18 Section 5.18 Presumption of Injury –– Public Employee's Covered Condition], the Labor Code enumerates several presumptions in favor of certain employees. The purpose of these statutes "is to favor a special class of employees whose service is vital to the public interest and whose strenuous work makes them especially vulnerable."<ref>''Smith v. Workmen's Comp. Appeals Bd.'' (1975) 45 Cal. App. 3d 162, 166.</ref>  
 
As discussed in "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/5.17 Section 5.17 Presumption of Injury –– Public Employee in General] and [https://app.sullivanoncomp.com/soc/index/title/5.18 Section 5.18 Presumption of Injury –– Public Employee's Covered Condition], the Labor Code enumerates several presumptions in favor of certain employees. The purpose of these statutes "is to favor a special class of employees whose service is vital to the public interest and whose strenuous work makes them especially vulnerable."<ref>''Smith v. Workmen's Comp. Appeals Bd.'' (1975) 45 Cal. App. 3d 162, 166.</ref>  
  
During the COVID-19 outbreak, employees deemed to be essential may continue working while nonessential workers are required to stay home. California's executive and legislative branches have created COVID-19 presumptions for certain workers who have been significantly affected by the outbreak.  
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In 2020, the California Legislature passed Senate Bill 1159 (SB 1159), which established a rebuttable presumption for specified employees that illness or death resulting from COVID-19 arose out of and in the course of employment. The Legislature believed that the burden of fighting COVID-19 had fallen disproportionately on a small group of workers in both the private and public sectors. The presumptions were enacted to reduce the barriers to accessing the workers’ compensation system for essential workers suffering from COVID-19.
  
California Gov. Gavin Newsom signed an executive order for a temporary presumption for a broad range of workers. On the last day of the 2020 California legislative session, the California Legislature passed Senate Bill 1159 that codified the governor's presumption and also established new presumptions that will remain in effect until Jan. 1, 2023. Although the following sections discuss general rules regarding how COVID-19 could be deemed compensable, in most cases, whether a COVID-19 claim is compensable probably will be decided by a presumption.
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But the COVID-19 presumptions were never meant to last indefinitely. Originally, they were to be repealed Jan. 1, 2023, but the sunset date was extended to Jan. 1, 2024 by Assembly Bill 1751 (AB 1751). There is no question that employees with COVID-19 claims with dates of injury on or after Jan. 1, 2024 will not be able to establish entitlement to workers' compensation benefits using a statutory presumption. But it probably also means that employees with COVID-19 claims with dates of injury prior to Jan. 1, 2024 will not be able to benefit from the presumptions established in the repealed statutes.  
  
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As explained in [https://app.sullivanoncomp.com/soc/index/title/1.9 Section 1.9 California Constitution], the right to workers' compensation benefits is wholly statutory, and all statutory remedies are pursued with the full realization that the Legislature may abolish the right to recovery at any time. A well-established line of authority holds: "The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards [''sic''], even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered."<ref>''Rio Linda Union School District v. WCAB (Scheftner)'' (2005) 70 CCC 999, 1006-07. See also ''Callet v. Alioto'' (1930) 210 Cal. 65, 67-78.</ref>
  
==EXECUTIVE ORDER N-62-20==
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A saving clause generally is used in a repealing act to preserve rights and claims that otherwise would be lost. Labor Code §§ 3212.86, 3212.87 and 3212.88, however, do not contain saving clauses. Nothing in the statutes indicates a legislative intent that any rights in them survive beyond Jan. 1, 2024.
  
On May 6, 2020, Gov. Newsom issued an executive order creating a temporary workers' compensation presumption for employees diagnosed with COVID-19. The governor explained that the executive order was signed to "remov[e] a burden for workers on the front lines, who risk their own health and safety to deliver critical services to our fellow Californians so that they can access benefits, and be able to focus on their recovery."<ref>See the Governor's announcement of the executive order at https://www.gov.ca.gov/2020/05/06/governor-newsom-announces-workers-compensation-benefits-for-workers-who-contract-covid-19-during-stay-at-home-order/.</ref>
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Accordingly, effective Jan. 1, 2024, compensability for any COVID-19 claim that has not been resolved by a final order cannot be established by the former COVID-19 presumptions. Employees still may establish the compensability of COVID-19 claims under the standard rules for compensability for nonoccupational diseases. The former COVID-19 presumption statutes are discussed below. For further a detailed discussion of COVID-19 claims, see [https://app.sullivanoncomp.com/soc/index/title/5.11 Section 5.11 Occupational Disease –– COVID-19].
  
The presumption is retroactive to the date of the stay-at-home order and will remain in effect for 60 days after its effective date. So the presumption is effective for employees working from March 19, 2020 through July 5, 2020.
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===Labor Code § 3212.86  –– Codification of Executive Order===
  
Under the executive order, any illness related to COVID-19 is presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if:
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LC 3212.86 generally codified Gov. Newsom's Executive Order N-62-20, although there are some minor differences. LC 3212.86 applied to any employee with an illness related to COVID-19 and deems that an illness or death related to COVID-19 is presumptively compensable if all of these were established (LC 3212.86(a)(b) (i)(2):
  
 
<ol>
 
<ol>
<li>The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that he or she performed labor or services at the employee’s place of employment at the employer’s direction.</li>
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<li>The employee performed labor or services at his or her place of employment at the employer’s direction between March 19, 2020 and July 5, 2020.</li>
<li>The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020.</li>
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<li>The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day he or she performed labor or services at his or her place of employment at the employer’s direction.</li>
<li>The employee’s place of employment was not the employee’s home or residence. And,</li>
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<li>The place of employment was not the employee’s residence.</li>
<li>The diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board, and that diagnosis is confirmed by further testing within 30 days.</li>
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<li>If the employee was diagnosed with COVID-19, the diagnosis was done by a licensed physician and surgeon holding an M.D. or D.O. degree, or state licensed physician assistant or nurse practitioner acting under the review or supervision of a physician/surgeon pursuant to standardized procedures or protocols within their lawfully authorized scope of practice, and that diagnosis is confirmed by testing or by a COVID-19 serologic test within 30 days of the date of the diagnosis.</li>
 
</ol>
 
</ol>
  
So, the presumption covers any employees who must work outside of their homes during the stay-at-home order at the employer’s direction. All essential workers who were required to report to work are covered, but the presumption also covers any nonessential workers who performed "labor or services at the employee’s place of employment at the employer’s direction." The presumption would not cover employees who went to their place of employment without their employer's direction.
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Unlike the executive order, LC 3212.86 allowed COVID-19 to be diagnosed not only by a licensed physician and surgeon, but also by a properly supervised state licensed physician assistant or nurse practitioner.  
 
 
The diagnosis must be confirmed by a test. There are two types of tests generally available: (1) a viral test, which determines if a person has a current infection; and (2) an antibody test, which determines if a person had a previous infection. The executive order doesn't limit the type of test that may be used to confirm the diagnosis. So, an employee who recovered from COVID-19 potentially could bring a claim for any benefits related to the infection using an antibody test provided that the positive test was obtained within 30 days of the initial diagnosis.
 
 
 
The presumption is rebuttable and may be controverted by "other evidence."<ref>Although the governor gave notice that the presumption could be rebutted only under "strict criteria," the executive order does not limit the evidence that may be used to rebut it. See Gov. Newsom's news conference of May 6, 2020 at https://www.youtube.com/watch?v=SbAuaffPIf4. The "strict criteria" remark occurs at the 5:00 mark in the video.</ref> So, under the executive order, an employer could rebut the presumption with any evidence that the employee contracted COVID-19 outside of the employment.
 
 
 
The executive order requires that a decision denying a claim for an presumptively compensable illness related to COVID-19 be made within 30 days after the date the claim form is filed. This shortens the time period for denial of a COVID-19 claim from the normal 90 days provided under Labor Code § 5402 (see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/5.16 Section 5.16 Presumption of Injury –– 90-Day Rule]).  Until the employer makes a decision, an employee will be eligible for as much as $10,000 in medical treatment for illness related to COVID-19.
 
 
 
The order also says that if a claim is not denied within this time period, it is presumed compensable, unless rebutted by evidence discovered only subsequent to the 30-day period. That probably would preclude an employer rebutting the presumption with evidence that ''could'' have been obtained with the exercise of reasonable diligence within the 30-day period.<ref>See ''State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Welcher)'' (1995) 37 Cal. App. 4th 675.</ref>
 
 
 
An employer that denied a claim prior to the executive order is not automatically required to reverse its decision. The employer may reconsider and accept the claim based on the order or stand by the denial.
 
 
 
An accepted claim for the illness related to COVID-19 is eligible for all benefits applicable under the workers’ compensation laws of this state, including full hospital, surgical, medical treatment, disability indemnity and death benefits. The executive order covers only regular workers' compensation benefits. It does not authorize reimbursement for the personal protective equipment or temporary housing proposed by other bills being considered in the Legislature.
 
 
 
The executive order states that illness related to COVID-19 "shall be subject to those laws including Labor Code sections 4663 and 4664, except as otherwise provided in this Order." Those statutes relate to apportionment of permanent disability, and, therefore, permanent disability related to COVID-19 is apportionable to other causes (see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/10.34 Section 10.34 Apportionment –– Pre-Existing Disease or Condition]).
 
  
The order also provides that if an employee has paid sick leave benefits specifically available in response to COVID-19, they should be used and exhausted before any temporary disability benefits or benefits under LC 4850 are due and payable. So if an employer specifically provided sick leave benefits in response to COVID-19, such as under the Families First Coronavirus Response Act or Executive Order N-51-20, such benefits must be exhausted before temporary disability or § 4850 benefits are payable. An employee is not required to use his or her normal sick leave benefits. If an employee does not have such sick leave benefits, he or she must be provided temporary disability benefits or § 4850 benefits, if applicable, from the date of disability. The executive order eliminates the three-day waiting period for temporary disability benefits under § 4652 (see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/9.16 Section 9.16 Waiting Period]).
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The presumption could be rebutted by "other evidence" (LC 3212.86(e)). An employer was required to deny liability for a claim of an illness related to COVID-19 within 30 days after the date the claim form was filed. Otherwise, the illness was presumed compensable and the presumption was rebuttable only by evidence discovered subsequent to the 30-day period (LC 3212.86(f)).
  
Nevertheless, to qualify for temporary disability benefits or benefits under LC 4850, an employee must satisfy either of these requirements:
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The employee could be awarded all regular workers' compensation benefits under LC 3212.86, including full hospital, surgical, medical treatment, disability indemnity, and death benefits (LC 3212.86(c)). If an employee had paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5, or LC 4850 were due and payable. If an employee did not have those sick leave benefits, temporary disability benefits or LC 4800, LC 4800.5, or LC 4850 benefits were paid from the date of disability. There was no waiting period for temporary disability benefits (LC 3212.86(d)(1)).
  
<ul>
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To qualify for temporary disability or LC 4800, LC 4800.5, or LC 4850 benefits, the employee had to satisfy either of these (LC 3212.86(d)(2)):
<li>If the employee tests positive or is diagnosed on or after May 6, 2020, he or she must be
 
certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis. Or, </li>
 
<li>If the employee tested positive or was diagnosed prior to May 6, 2020, the employee must obtain a certification, within 15 days of the date of the order, documenting the period for which he or she was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.</li>
 
</ul>
 
 
 
So being diagnosed with COVID-19 does not automatically entitle an employee to temporary disability benefits. The worker still must be certified for temporary disability by a physician licensed by the California Medical Board. The certifying physician may be a designated workers’ compensation physician in an applicable medical provider network or health-care organization, a predesignated workers’ compensation physician or a physician in the employee’s group health plan. If the employee does not have a designated workers’ compensation physician or group health plan, he or she should be certified by a physician of the employee’s choosing who holds a physician and surgeon license. For further discussion on liability for temporary disability, see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/Chapter%209 Chapter 9: Temporary Disability].
 
 
 
Finally, the executive order states that the Department of Industrial Relations (DIR) must waive collection on any death benefit payment due pursuant to LC 4706.5 arising out of claims covered by the order. That statute generally directs that if an employee dies without leaving any person entitled to a dependency death benefit, the employer is required to pay death benefits to the DIR (see "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/12.24 Section 12.24 Payment to State –– No Dependent]).
 
 
 
The administrative director is given authority to adopt, amend or repeal any regulations deemed necessary to implement the order. Any regulations promulgated by the AD will be exempt from the Administrative Procedures Act. But the director must submit the regulations to the Office of Administrative Law for publication in the California Regulatory Notice Register.
 
 
 
Th DIR answers questions regarding the executive order at: https://www.dir.ca.gov/dwc/Covid-19/FAQs.html. The executive order is available at: https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.
 
 
 
 
 
==SENATE BILL 1159==
 
 
 
On Aug. 31, 2020, the last day of the 2020 California legislative session, the California Legislature passed Senate Bill 1159 (SB 1159), which establishes a rebuttable presumption that illness or death resulting from COVID-19 arose out of and in the course of employment for specified employees. Although multiple COVID-19 presumption bills were introduced this year, only SB 1159 had enough support to be passed. Gov. Newsom has until Sept. 30 to sign or veto the bill. Because SB 1159 was the only COVID-19 presumption passed, there is no reason to believe it won't be signed. SB 1159 was passed as an urgency statute, meaning it will take effect immediately upon signing.
 
 
 
SB 1159 adds three new Labor Code sections that establish COVID-19 presumptions. Labor Code § 3212.86 codifies Gov. Newsom's Executive Order (N-62-20) for employees working from March 19, 2020 through July 5, 2020. In addition, two new statutes create presumptions for COVID-19 injuries on or after July 6, 2020 –– § 3212.87 applies to front-line workers (peace officers, firefighters, health-care providers, home care workers and IHSS workers), and § 3212.88 applies to employees who contract COVID-19 due to a workplace outbreak. Significantly, SB 1159 also establishes reporting requirements for employers and claims administrators to review possible claims retroactively and assess whether those employees are entitled to the presumption.
 
 
 
The presumptions remain in effect until Jan. 1, 2023, and as of that date would be repealed. The text of SB 1159 is available on the [https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB1159 California Legislative Information website].
 
 
 
===LABOR CODE § 3212.86  –– CODIFICATION OF EXECUTIVE ORDER===
 
 
 
LC 3212.86 generally codifies Gov. Newsom's Executive Order (N-62-20), although there are some minor differences. It provides that an illness or death related to COVID-19 is presumptively compensable if all of these are established:
 
  
 
<ol>
 
<ol>
<li>The employee performed labor or services at the employee’s place of employment at the employer’s direction between March 19, 2020 and July 5, 2020.</li>
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<li>If the employee tested positive or was diagnosed with COVID-19 on or after May 6, 2020, she or he was certified for temporary disability within the first 15 days after the initial diagnosis, and  recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.</li>
<li>The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.</li>
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<li>If the employee tested positive or was diagnosed with COVID-19 before May 6, 2020, she or he obtained a certification no later than May 21, 2020, documenting the period for which she or he was temporarily disabled and unable to work, and must have been recertified for temporary disability every 15 days thereafter for the first 45 days following diagnosis.</li>
<li>The place of employment was not the employee’s residence.</li>
 
<li>If the employee was diagnosed with COVID-19, the diagnosis was done by a licensed physician and surgeon holding an M.D. or D.O. degree or state licensed physician assistant or nurse practitioner, acting under the review or supervision of a physician/surgeon pursuant to standardized procedures or protocols within their lawfully authorized scope of practice, and that diagnosis is confirmed by testing or by a COVID-19 serologic test within 30 days of the date of the diagnosis.</li>
 
 
</ol>
 
</ol>
  
Unlike the executive order, § 3212.86 allows COVID-19 to be diagnosed not only by a licensed physician and surgeon, but also by a properly supervised state licensed physician assistant or nurse practitioner.
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The temporary disability had to be certified by a physician holding a physician’s and surgeon’s license issued per Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code (LC 3212.86(d)(3)).
 
 
The presumption may be rebutted by "other evidence" without limitation. An employer must deny liability for a claim of an illness related to COVID-19 within 30 days after the date the claim form is filed. Otherwise, the illness will be presumed compensable and the presumption will be rebuttable only by evidence discovered subsequent to the 30-day period.
 
 
 
The employee may be awarded all regular workers' compensation benefits under § 3212.86, including full hospital, surgical, medical treatment, disability indemnity and death benefits. If an employee has paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5 or LC 4850 are due and payable. If an employee does not have those sick leave benefits, temporary disability benefits or § 4800, § 4800.5 or § 4850  benefits must be paid from the date of disability.  
 
  
To qualify for temporary disability or § 4800, § 4800.5 or § 4850 benefits, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified every 15 days for the first 45 days following the diagnosis.
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===Labor Code § 3212.87  –– Presumption for Front-line Workers===
  
===LABOR CODE § 3212.87  –– PRESUMPTION FOR FRONT-LINE WORKERS===
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LC 3212.87 established a COVID-19 presumption for California front-line workers. Specifically, it covered (LC 3212.87(a)):
 
 
LC 3212.87 establishes a COVID-19 presumption for front-line workers. Specifically, it covers:
 
  
 
<ol>
 
<ol>
 
<li>active firefighting members, whether volunteers, partly paid or fully paid, of all of these departments:
 
<li>active firefighting members, whether volunteers, partly paid or fully paid, of all of these departments:
 
<ol type="a">
 
<ol type="a">
<li>a fire department of a city, county, city and county, district or other public or municipal corporation or political subdivision;</li>
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<li>a fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision;</li>
 
<li>a fire department of the University of California and the California State University;</li>
 
<li>a fire department of the University of California and the California State University;</li>
 
<li>the Department of Forestry and Fire Protection (Cal Fire);</li>
 
<li>the Department of Forestry and Fire Protection (Cal Fire);</li>
<li>a county forestry or firefighting department or unit;</li></ol>
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<li>a county forestry or firefighting department or unit;</li>
 +
<li>the Department of State Hospitals;</li>
 +
<li>the Department of Developmental Services;</li>
 +
<li>the Military Department;</li>
 +
<li>the Department of Veterans Affairs (CalVet).</ol>
 
<li>active firefighting members of a fire department that serves a U.S. Department of Defense installation and who are certified by the U.S. Department of Defense as meeting its standards for firefighters;</li>
 
<li>active firefighting members of a fire department that serves a U.S. Department of Defense installation and who are certified by the U.S. Department of Defense as meeting its standards for firefighters;</li>
 
<li>active firefighting members of a fire department that serves a National Aeronautics and Space Administration (NASA) installation and who adhere to specified training standards;</li>
 
<li>active firefighting members of a fire department that serves a National Aeronautics and Space Administration (NASA) installation and who adhere to specified training standards;</li>
Line 114: Line 72:
 
<li>an employee who provides direct patient care, or a custodial employee in contact with COVID-19 patients, who works at a health facility;</li>
 
<li>an employee who provides direct patient care, or a custodial employee in contact with COVID-19 patients, who works at a health facility;</li>
 
<li>an authorized registered nurse, emergency medical technician-I, emergency medical technician-II or emergency medical technician-paramedic;</li>
 
<li>an authorized registered nurse, emergency medical technician-I, emergency medical technician-II or emergency medical technician-paramedic;</li>
<li>an employee who provides direct patient care for a home health agency under Health and Safety Code § 1727;</li>
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<li>an employee who provides direct patient care for a home health agency under Health and Safety Code 1727;</li>
 
<li>employees of health facilities, other than those described in No. 7, if the employer cannot establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19;</li>
 
<li>employees of health facilities, other than those described in No. 7, if the employer cannot establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19;</li>
<li>a provider of in-home supportive services, when he/she provides the services outside his/her own home or residence.</li>
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<li>a provider of in-home supportive services, when he or she provides the services outside his or her own home or residence.</li>
 
</ol>
 
</ol>
  
In order to receive the presumption under § 3212.87, such employees must establish that:
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In order to receive the presumption under LC 3212.87, employees had to establish that (LC 3212.87(b)(i)(3)):
  
 
<ol>
 
<ol>
 
<li>They performed labor or services at their place of employment at the employer’s direction on or after July 6, 2020.</li>
 
<li>They performed labor or services at their place of employment at the employer’s direction on or after July 6, 2020.</li>
 
<li>They tested positive for COVID-19 within 14 days after a day that they performed labor or services at their place of employment at the employer’s direction.</li>
 
<li>They tested positive for COVID-19 within 14 days after a day that they performed labor or services at their place of employment at the employer’s direction.</li>
<li>Their place of employment is not their home or residence.</li>
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<li>Their place of employment was not their home or residence.</li>
 
</ol>
 
</ol>
The statute defines “test” or “testing” to mean a PCR (polymerase chain reaction) test approved for use or approved for emergency use by the U.S Food and Drug Administration (FDA) to detect the presence of viral RNA or any other viral culture test approved for use or approved for emergency use by the FDA to detect the presence of viral RNA that has the same or higher sensitivity and specificity as the PCR test. It specifies that the terms do not include serologic testing, also known as antibody testing.
 
 
The presumption extends to such employees following termination of service for a period of 14 days, commencing with the last date actually worked. If these conditions are met, the injury or death related to COVID-19 is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by "other evidence."
 
  
LC 3212.87 does not specify evidence that may be used to rebut the presumption. As discussed below, LC 3212.88 states, "Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection." Because there is no limitation on the rebuttal evidence that might be used or considered, there is no reason why the same evidence can't be used to rebut the presumption under § 3212.87.
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The positive test had to be a PCR (polymerase chain reaction) test or any other viral culture test that has the same or higher sensitivity and specificity as the PCR test approved for use or approved for emergency use by the U.S. Food and Drug Administration (FDA) to detect the presence of viral RNA. It did not include serologic testing, also known as antibody testing (LC 3212.87(i)(2)).  
  
LC 3212.87 also requires liability for a claim of illness related to COVID-19 to be denied within 30 days after the date the claim form is filed pursuant to LC 5401. If it is not denied within the 30-day period, the illness is presumed compensable, and this presumption is rebuttable only by evidence discovered subsequent to the 30-day period.
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The date of injury was the last date before the positive test that the employee performed labor or services at his or her place of employment at the employer’s direction (LC 3212.87(b)(2)). The presumption extended to such employees following termination of service for a period of 14 days, commencing with the last date actually worked. If those conditions were met, the injury or death related to COVID-19 was presumed to arise out of and in the course of the employment. The presumption was disputable and could be controverted by "other evidence" (LC 3212.87(e)).
  
If the presumption applies, an employee will be entitled to regular workers' compensation benefits including full hospital, surgical, medical treatment, disability indemnity and death benefits. LC 3212.87 does not cover expenses related to a self-quarantine or mandatory quarantine for employees who do not test positive.  
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LC 3212.87 also required liability for a claim of illness related to COVID-19 to be denied within 30 days after the date the claim form was filed pursuant to LC 5401. If it was not denied within the 30-day period, the illness was presumed compensable, and the presumption was rebuttable only by evidence discovered subsequent to the 30-day period (LC 3212.87(f)).
  
LC 3212.87 requires that if an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits must be used and exhausted before any temporary disability benefits or benefits under § 4800, § 4800.5 or § 4850 are due and payable. LC 3212.87 requires an employee to exhaust special COVID-19 time-off benefits provided by federal law before the workers' compensation benefits attach. If an employee does not have those sick leave benefits, he or she must be provided temporary disability benefits or other benefits, if applicable, from the date of disability without application of the normal waiting period for such benefits. Unlike for injuries related to COVID-19 before July 6, 2020, there is no requirement for employees to be certified for temporary disability every 15 days for the first 45 days following the COVID-19 diagnosis.
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If the presumption applied, per LC 3212.87(c), an employee was entitled to regular workers' compensation benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits. LC 3212.87 did not cover expenses related to a self-quarantine or mandatory quarantine for employees who did not test positive.  
  
===LABOR CODE § 3212.88 –– PRESUMPTION FOR OUTBREAK AT PLACE OF EMPLOYMENT===
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Per LC 3212.87, if an employee had paid sick leave benefits specifically available in response to COVID-19, they must have been used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5, or LC 4850 were due and payable. If an employee did not have those sick leave benefits, he or she was provided temporary disability benefits or other benefits, if applicable, from the date of disability without application of the normal waiting period for temporary disability benefits (LC 3212.87(d)). Unlike for injuries related to COVID-19 before July 6, 2020, there was no requirement for employees to be certified for temporary disability every 15 days for the first 45 days following the COVID-19 diagnosis.
  
LC 3212.88 establishes a COVID-19 presumption for employees who are not covered by § 3212.87. It applies to employees who test positive during an outbreak at their place of employment if the employer has five or more employees. To qualify for this presumption, these must be established:
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===Labor Code § 3212.88 –– Presumption for Outbreak at Place of Employment===
  
<ol>
+
LC 3212.88 established a COVID-19 presumption for employees who are not covered by LC 3212.87. It applied to employees who tested positive during an outbreak at their place of employment if the employer had five or more employees (LC 3212.88(a)).  
<li>The employee tested positive for COVID-19 within 14 days after a day that he/she performed labor or services at his/her place of employment at the employer’s direction.</li>
 
<li>The employee performed labor or services at his/her place of employment at the employer’s direction on or after July 6, 2020.</li>
 
<li>The employee’s positive test occurred during a period of an outbreak at his/her specific place of employment (that is, the building, store, facility or agricultural field where he/she performs work at the employer’s direction).</li>
 
<li>The specific place of employment was not the employee's home or residence, unless he/she provides home health care services to another individual at his/her home or residence.</li>
 
</ol>
 
  
The statute specifies that serologic testing, also known as antibody testing, is not included in determining whether an employee tested positive.
+
LC 3212.88 specified that an “outbreak” existed if, within 14 calendar days, one of these occurred at a specific place of employment (LC 3212.88(m)(4)):
  
LC 3212.88 specifies that an “outbreak” exists if within 14 calendar days, one of these occurs at a specific place of employment:
 
 
<ol>
 
<ol>
<li>Four employees test positive for COVID-19 at a specific place of employment with 100 employees or fewer.</li>
+
<li>Four employees tested positive for COVID-19 at a specific place of employment with 100 employees or fewer.</li>
<li>Four percent of the number of employees test positive for COVID-19 where more than 100 employees reported to the specific place of employment.</li>
+
<li>Four percent of the number of employees tested positive for COVID-19 where more than 100 employees reported to the specific place of employment.</li>
<li>The place 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.</li>
+
<li>The place of employment was 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 community college district chancellor, school president, or school superintendent.</li>
 
</ol>
 
</ol>
  
The statute clarifies that if an employee performs in multiple places of employment within 14 days of his or her positive test, the positive test must be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak exists at any one of them, that is the employee’s “specific place of employment.”
+
The statute clarified that if an employee performed in multiple places of employment within 14 days of her or his positive test, the test must be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak existed at any one of them, that was the employee’s “specific place of employment” (LC 3212.88(m)(3)(B)).
 
 
If these conditions are met, the injury or death related to COVID-19 is presumed to arise out of and in the course of the employment. This presumption will be extended to any covered employee following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment.
 
 
 
This presumption is disputable and may be controverted by "other evidence." LC 3212.88 doesn't limit the evidence that may be used to rebut the presumption. Moreover, it states, "Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection."
 
 
 
An employee covered by § 3212.88 is entitled to benefits including full hospital, surgical, medical treatment, disability indemnity and death benefits. If an employee has paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits, benefits under § 4800, § 4800.5 or § 4850 or Education Code § 44977, § 44984, § 45192, § 45196, § 87780, § 87787, § 88192 or § 88196 are due and payable. If an employee does not have those sick leave benefits, the employee must be provided the appropriate benefits from the date of disability. The waiting period for temporary disability benefits will not apply.
 
 
 
Unlike LC 3212.87, which requires liability for a claim of illness related to COVID-19 to be denied within 30 days, § 3212.88 requires liability for a claim of such illness to be rejected within 45 days after the date the claim form is filed. If the claim is not denied within the 45-day period, the claim is presumed compensable and the presumption is rebuttable only by evidence discovered subsequent to the 45-day period.
 
  
====Employer Reporting Requirements====
+
====Establishing Presumption====
  
Significantly, § 3212.88 establishes additional reporting requirements for employers. When an employer knows or reasonably should know that an employee has tested positive for COVID-19, it must report to its claims administrator in writing via electronic mail or facsimile within three business days all of these:
+
To qualify for the presumption, these had to be established (LC 3212.88(b)(m)(3)(A)):
  
 
<ol>
 
<ol>
<li>An employee has tested positive. (For the initial report, the employer must not provide any personally identifiable information regarding the employee who tested positive for COVID-19 unless he/she asserts that the infection is work related or has filed a claim form pursuant to § 5401.)</li>
+
<li>The employee tested positive for COVID-19 within 14 days after a day that she or he performed labor or services at her or his place of employment at the employer’s direction.</li>
<li>An employee tested positive on a specified date, which is the date the specimen was collected for testing.</li>
+
<li>The employee performed labor or services at her or his place of employment at the employer’s direction on or after July 6, 2020.</li>
<li>During the 14-day period preceding the date of an employee's positive test, specify the address or addresses of employment where he/she worked.</li>
+
<li>The employee’s positive test occurred during a period of an outbreak at her or his specific place of employment (that is, the building, store, facility, or agricultural field where she or he performed work at the employer’s direction).</li>
<li>In the 45-day period preceding the last day the employee worked at each specific place of employment, provide the highest number of employees who reported to work at his/her specific place of employment.</li>
+
<li>The specific place of employment was not the employee's home or residence, unless she or he provided home health-care services to another individual at her or his home or residence.</li>
 
</ol>
 
</ol>
  
The statute also requires an employer to review past cases and report those to the claims administrator. It requires any employer who is aware of an employee testing positive on or after July 6, 2020, and prior to the effective date of the statute, to report the required information to the claims administrator in writing via electronic mail or facsimile within 30 business days of the effective date of the statute.
+
The positive test had to be a PCR (polymerase chain reaction) test or any other viral culture test that has the same or higher sensitivity and specificity as the PCR test approved for use or approved for emergency use by the FDA to detect the presence of viral RNA. It did not include serologic testing, also known as antibody testing (LC 3212.88(m)(2)).
  
====Penalties for False or Misleading Reporting====
+
If those conditions were met, the injury or death related to COVID-19 was presumed to arise out of and in the course of the employment. The date of injury was the last date before the positive test that the employee performed labor or services at his or her place of employment at the employer’s direction (LC 3212.88(b)(2)). The presumption was extended to any covered employee following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment (LC 3212.88(e)(1)).
  
LC 3212.88 directs that an employer or other person acting on behalf of an employer who intentionally submits false or misleading information or who fails to submit the required information is subject to a civil penalty of as much as $10,000 to be assessed by the Labor commissioner. The commissioner may issue a citation following an inspection or investigation.  
+
The presumption was disputable and, per LC 3212.88(e)(1), could be controverted by "other evidence." LC 3212.88 didn't limit the evidence that could be used to rebut the presumption. Moreover, per LC 3212.88(e)(2), "Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection." As discussed below, however, it was very difficult to overcome the presumption.
  
LC 3212.88 also establishes procedures to contest the civil penalty citation. If a person desires to contest a citation or the proposed assessment of a civil penalty, she or he must notify the office of the Labor commissioner of their request for an informal hearing within 15 business days after service of the citation. The commissioner or the deputy or agent must hold a hearing within 30 days.  
+
LC 3212.88(f) required liability for a claim of such illness to be rejected within 45 days after the date the claim form was filed. If the claim was not denied within the 45-day period, the claim was presumed compensable and the presumption was rebuttable only by evidence discovered subsequent to the 45-day period.
  
At the conclusion of the hearing, the citation or proposed assessment of a civil penalty must be affirmed, modified or dismissed. The Labor commissioner's decision must be served on all parties within 15 days after the hearing by regular first-class mail. Any amount found to be owed by the Labor commissioner as a result of a hearing is due and payable 45 days after notice of the findings and written findings and order have been mailed to the party assessed.
+
====Available Benefits====
  
A writ of mandate may be taken from Labor commissioner's decision to the appropriate superior court. The appealing party must agree to pay any judgment and costs ultimately rendered by the court against the party for the assessment. The writ of mandate must be filed within 45 days of service of the notice of findings, findings and relevant order. If the party filing a writ of mandate is unsuccessful in challenging the decision of the hearing officer, the Labor commissioner will recover costs and attorney fees.
+
An employee covered by LC 3212.88 was entitled to benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits (LC 3212.88(c)). If an employee had paid sick leave benefits specifically available in response to COVID-19, they had to be used and exhausted before any temporary disability benefits, benefits under LC 4800, LC 4800.5, or LC 4850, or Education Code (EC) 44977, EC 44984, EC 45192, EC 45196, EC 87780, EC 87787, EC 88192, or EC 88196 were due and payable. If an employee did not have those sick leave benefits, the employee was to be provided the appropriate benefits from the date of disability. The waiting period for temporary disability benefits did not apply (LC 3212.88(d)).
  
In lieu of contesting a citation, an employer or person may pay the amount specified for the violation within 15 business days after issuance of the citation.
+
====Reporting Requirements====
  
====Claims Administration Requirements====
+
LC 3212.88(i) established reporting requirements for employers. When an employer knew or reasonably should know that an employee tested positive for COVID-19, it had to report all of these within three business days to its claims administrator in writing via electronic mail or facsimile:
  
The claims administrator must use information reported by the employer to determine if an outbreak has occurred for the purpose of administering a claim. The claims administrator must use the information to retroactively determine if an outbreak has occurred from July 6, 2020, to the effective date of the statute for the purpose of applying the presumption. A claim is not part of an outbreak if it occurs during a continuous 14-day period in which the requisite number of positive tests have not been met.  
+
<ol>
 +
<li>An employee tested positive. (For the initial report, the employer must not have provided any personally identifiable information regarding the employee who tested positive for COVID-19 unless he or she asserted that the infection was work related or had filed a claim form pursuant to LC 5401.)</li>
 +
<li>An employee tested positive on a specified date, which was the date the specimen was collected for testing.</li>
 +
<li>During the 14-day period preceding the date of an employee's positive test, the address or addresses of employment where he or she worked had to be specified.</li>
 +
<li>In the 45-day period preceding the last day the employee worked at each specific place of employment, the highest number of employees who reported to work at his or her specific place of employment had to be provided.</li>
 +
</ol>
  
To calculate the number of employees at a specific place of employment, the claims administrator must utilize the data reported for the first employee who is part of the outbreak. A claim is not part of an outbreak if it occurs during a continuous 14-day period in which the requisite number of positive tests have not been met. The claims administrator must continually evaluate each claim to determine whether the requisite number of positive tests have occurred during the surrounding 14-day periods.
+
The statute also gave employers 30 business days starting Sept. 17, 2020 to report to their claims administrator, in writing via fax or email, when they knew that an employee tested positive for COVID-19 between July 6, 2020 and Sept. 16, 2020. For such positive tests, employers had to report the first three items above and, in place of the fourth, 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 (LC 3212.88(k)(2)).
  
===STUDY ON IMPACT OF COVID-19 CLAIMS===
+
The claims administrator was required to use the information reported by the employer to determine if an outbreak had occurred for the purpose of administering a claim (LC 3212.88(k)(1)). The claims administrator had to use the information to retroactively determine if an outbreak occurred from July 6, 2020, to the effective date of the statute for the purpose of applying the presumption (LC 3212.88(k)(2)). A claim was not part of an outbreak if it occurred during a continuous 14-day period in which the requisite number of positive tests was not met. The claims administrator was required to continually evaluate each claim to determine whether the requisite number of positive tests occurred during the surrounding 14-day periods (LC 3212.88(l)).
  
In addition to the presumptions, SB 1159 adds Labor Code § 77.8, which requires the Commission on Health and Safety and Workers’ Compensation to conduct a study of the impact of COVID-19 claims on the workers’ compensation system. The study must review the overall impact on indemnity benefits, medical benefits and death benefits, including differences in the effects across different occupational groups. The study also must include the effect of § 3212.87 and § 3212.88. A preliminary report or a final report must be delivered to the Legislature and the governor by Dec. 31, 2021, and the final report must be delivered to the same parties no later than April 30, 2022.
+
====Penalties for False or Misleading Reporting====
 
 
===ANALYSIS OF SB 1159===
 
 
 
It is no surprise that the Legislature passed a bill creating a presumption of compensability for COVID-19 for certain workers. Since the COVID-19 outbreak, the government has tried to balance keeping the economy open with the need to save lives. The obvious purpose of SB 1159 is to protect employees the Legislature believed were disproportionately affected by the coronavirus.
 
 
 
As noted in the Assembly Floor Analysis for SB 1159, to have a valid claim for an infectious disease, in general, employees must prove that their exposure at work was greater than the exposure of the average nonworker. The Legislature recognized that the pandemic nature of COVID-19 challenged how infectious diseases historically have been handled in the workers' compensation system.
 
  
The Assembly Floor Analysis explains, "As a result of the Governor's 'shelter-in' order, anyone who was not an 'essential employee' was by definition NOT exposed more than the general population, and any 'essential employee' was exposed more than the general population, because these employees were out in the community due to work obligations." It adds, "The purpose of the bill is to provide presumptive workers' compensation benefits to those who are 'subjectively' infected at work, but who may have difficulty proving this fact."
+
LC 3212.88(j) directed that an employer or other person acting on behalf of an employer who intentionally submitted false or misleading information or who failed to submit the required information was subject to a civil penalty of as much as $10,000 to be assessed by the Labor commissioner.  
  
The Senate Floor Analysis explains, "While COVID-19 is present in all California communities, the burden of fighting the disease has fallen disproportionately to a small group of workers in both the private and public sectors. These workers keep California's lights on, water running, food stocked, and treat our ill and injured." It adds, "Therefore, it intuitively makes sense that extending a presumption to these workers would further the cause of justice: by reducing the barriers to accessing the workers’ compensation system, essential workers suffering from COVID-19 will receive the healthcare they need when they need it without delay." The Assembly Floor Analysis and Senate Floor Analysis are available from the [http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB1159 California Legislative Information website].
+
The commissioner could issue a citation following an inspection or investigation. The citation could be served personally or by registered mail. Each citation had to be in writing and describe the nature of the violation, including reference to the statutory provision alleged to have been violated (LC 3212.88(j)(1)).
  
Neither employees nor employers, however, are likely to be completely satisfied with SB 1159. Employees will be unsatisfied that the legislation establishes only rebuttable, rather than conclusive presumptions of compensability. Despite the fact that the Legislature recognized that "essential workers" were subject to a greater risk of exposure than the general public, SB 1159 does not cover all essential workers. It establishes a presumption only for specified public safety officers and health-care workers, and allows other "essential workers" to receive a presumption only if there is an "outbreak" at their place of employment under the same conditions as all other workers.  
+
An employer or person who did not contest a citation could pay to the office of the Labor commissioner the amount specified for the violation within 15 business days after issuance of the citation (LC 3212.88(j)(3)). A party who wanted to contest a citation or the proposed assessment of a civil penalty had to notify the office of the Labor commissioner within 15 business days after service of the citation of the request for an informal hearing. The Labor commissioner or her or his deputy or agent was required to hold a hearing within 30 days (LC 3212.88(j)(2)).  
  
Moreover, SB 1159 expressly covers only regular workers' compensation benefits. It doesn't provide reimbursement for personal protective equipment self-procured by employees or cover costs related to either an employer- or government-mandated quarantine. The Assembly Bill Analysis recognized that many employees, who might have been exposed to COVID-19, may be asked to quarantine by employers who do not wish to risk further exposure to other employees. It recognized that many of these employees ultimately do not test positive for COVID-19 but missed time from work. Nevertheless, it stated, "Any benefit of this sort would be outside of normal workers' compensation benefits, as these not-infected employees never had an industrial disease or condition. The bill does not address this scenario, as it requires either a positive test or physician diagnosis to trigger benefits."
+
At the end of the hearing, the citation or proposed assessment of a civil penalty had to be affirmed, modified, or dismissed. The decision consisted of a notice of findings, findings and order, and had to be served on all parties within 15 days after the hearing by regular first-class mail. Any amount found due by the Labor commissioner as a result of a hearing became due and payable 45 days after notice of the findings and written findings and order were mailed to the party assessed (LC 3212.88(j)(2)).  
  
Employer groups objected to the bill, claiming that it will cause many employees, who are not infected at work, to be covered by workers' compensation benefits. Although SB 1159 does not limit the evidence that may be used to rebut the presumptions, the Assembly Bill Analysis states that "the employer would have to 'prove' that the employee affirmatively did NOT become infected on the job." Although the Legislature believed that specifying two types of evidence that could rebut the presumption (that is, safety measures adopted by the employer and evidence of an employee’s nonoccupational risks of COVID-19 infection) would address employer concerns, employers know that in practice, it is virtually impossible to rebut the presumptions as written, because you can't prove a negative.
+
A writ of mandate could be taken from the finding to the appropriate superior court, as long as the party agreed to pay any judgment and costs ultimately rendered by the court against the party for the assessment. The writ of mandate had to be taken within 45 days of service of the notice of findings, findings and order (LC 3212.88(j)(2)). If the writ of mandate was unsuccessful, the Labor commissioner was entitled to recover costs and attorney fees (LC 3212.88(j)(4)).
  
Most significant, as noted in the Senate Floor Analysis, employers objected to LC 3212.88 as "administratively burdensome, unrelated to actual risk in the workplace, and unworkable for employers." The reporting requirements, particularly those requiring employers to report positive COVID-19 cases retroactive to July 6, 2020, will be problematic. The Legislature essentially has asked employers to report information that they might not have collected at the time and threatened that civil penalties may apply for noncompliance.
+
===Study on Impact of COVID-19 Claims===
  
Furthermore, the Legislature's instruction that claims administrators must use the information reported by employers "to determine if an outbreak has occurred for the purpose of administering a claim" is ambiguous. The statute does not explain how they must begin administering a claim if they determine that an outbreak occurred. Moreover, the statute requires claims administrators to use information from July 6, 2020 to the effective date of the statute "for the purpose of applying the presumption under this section." But it's not clear if the Legislature intends to equate a claims administrator's notice with the presumption that applies to notice of an injury.  
+
In addition to the presumptions, SB 1159 added LC 77.8, requiring the Commission on Health and Safety and Workers’ Compensation to conduct a study of the impact of COVID-19 claims on the workers’ compensation system. The study was to review the overall impact on indemnity benefits, medical benefits, and death benefits, including differences in the effects across different occupational groups. The study also was to include the effect of LC 3212.87 and LC 3212.88. It is available at: https://www.dir.ca.gov/chswc/Reports/2022/RAND-COVID-claims-presumptions.pdf.
  
In ''Honeywell v. WCAB'' (2005) 35 Cal. 4th 24, the California Supreme Court held that an employer must provide a claim form when it "knows" of an injury or claim, not when it is reasonably certain. It also held that when an employer knows of an injury, the employer bears the burden of informing the worker of his or her possible compensation rights, and of providing a claim form. So, if a claims administrator is aware that the presumption applies, it seems that at the very least, it should provide the employee with a claim form. Whether a claims administrator has any other obligations until the claim form is filed is unclear.
+
==See Also==
 
 
Ultimately, we can expect litigation in the upcoming years regarding the types of evidence that may be used to rebut the presumptions established as well as the duties of an employer and claims administrator when they have notice that an employee has tested positive for COVID-19.
 
 
 
 
 
 
 
==SEE ALSO==
 
  
 
* [[When Is COVID-19 Work Related?]]
 
* [[When Is COVID-19 Work Related?]]
 +
* [[COVID-19 Presumptions — FAQs]]
 
* [[The Basic Rule — Increased Risk and the General Public]]
 
* [[The Basic Rule — Increased Risk and the General Public]]
  
 
+
==References==
==REFERENCES==
 
  
 
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! [[When Is COVID-19 Work Related?|< When Is COVID-19 Work Related? ]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[The Basic Rule Increased Risk and the General Public| The Basic Rule Increased Risk and the General Public >]]
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! [[When Is COVID-19 Work Related?|< When Is COVID-19 Work Related? ]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[COVID-19 Presumptions FAQs| COVID-19 Presumptions FAQs >]]
 
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Latest revision as of 21:39, 3 January 2024

< Previous Table of Contents Next >


As discussed in "Sullivan on Comp" Section 5.17 Presumption of Injury –– Public Employee in General and Section 5.18 Presumption of Injury –– Public Employee's Covered Condition, the Labor Code enumerates several presumptions in favor of certain employees. The purpose of these statutes "is to favor a special class of employees whose service is vital to the public interest and whose strenuous work makes them especially vulnerable."[1]

In 2020, the California Legislature passed Senate Bill 1159 (SB 1159), which established a rebuttable presumption for specified employees that illness or death resulting from COVID-19 arose out of and in the course of employment. The Legislature believed that the burden of fighting COVID-19 had fallen disproportionately on a small group of workers in both the private and public sectors. The presumptions were enacted to reduce the barriers to accessing the workers’ compensation system for essential workers suffering from COVID-19.

But the COVID-19 presumptions were never meant to last indefinitely. Originally, they were to be repealed Jan. 1, 2023, but the sunset date was extended to Jan. 1, 2024 by Assembly Bill 1751 (AB 1751). There is no question that employees with COVID-19 claims with dates of injury on or after Jan. 1, 2024 will not be able to establish entitlement to workers' compensation benefits using a statutory presumption. But it probably also means that employees with COVID-19 claims with dates of injury prior to Jan. 1, 2024 will not be able to benefit from the presumptions established in the repealed statutes.

As explained in Section 1.9 California Constitution, the right to workers' compensation benefits is wholly statutory, and all statutory remedies are pursued with the full realization that the Legislature may abolish the right to recovery at any time. A well-established line of authority holds: "The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards [sic], even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered."[2]

A saving clause generally is used in a repealing act to preserve rights and claims that otherwise would be lost. Labor Code §§ 3212.86, 3212.87 and 3212.88, however, do not contain saving clauses. Nothing in the statutes indicates a legislative intent that any rights in them survive beyond Jan. 1, 2024.

Accordingly, effective Jan. 1, 2024, compensability for any COVID-19 claim that has not been resolved by a final order cannot be established by the former COVID-19 presumptions. Employees still may establish the compensability of COVID-19 claims under the standard rules for compensability for nonoccupational diseases. The former COVID-19 presumption statutes are discussed below. For further a detailed discussion of COVID-19 claims, see Section 5.11 Occupational Disease –– COVID-19.

Labor Code § 3212.86 –– Codification of Executive Order

LC 3212.86 generally codified Gov. Newsom's Executive Order N-62-20, although there are some minor differences. LC 3212.86 applied to any employee with an illness related to COVID-19 and deems that an illness or death related to COVID-19 is presumptively compensable if all of these were established (LC 3212.86(a)(b) (i)(2):

  1. The employee performed labor or services at his or her place of employment at the employer’s direction between March 19, 2020 and July 5, 2020.
  2. The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day he or she performed labor or services at his or her place of employment at the employer’s direction.
  3. The place of employment was not the employee’s residence.
  4. If the employee was diagnosed with COVID-19, the diagnosis was done by a licensed physician and surgeon holding an M.D. or D.O. degree, or state licensed physician assistant or nurse practitioner acting under the review or supervision of a physician/surgeon pursuant to standardized procedures or protocols within their lawfully authorized scope of practice, and that diagnosis is confirmed by testing or by a COVID-19 serologic test within 30 days of the date of the diagnosis.

Unlike the executive order, LC 3212.86 allowed COVID-19 to be diagnosed not only by a licensed physician and surgeon, but also by a properly supervised state licensed physician assistant or nurse practitioner.

The presumption could be rebutted by "other evidence" (LC 3212.86(e)). An employer was required to deny liability for a claim of an illness related to COVID-19 within 30 days after the date the claim form was filed. Otherwise, the illness was presumed compensable and the presumption was rebuttable only by evidence discovered subsequent to the 30-day period (LC 3212.86(f)).

The employee could be awarded all regular workers' compensation benefits under LC 3212.86, including full hospital, surgical, medical treatment, disability indemnity, and death benefits (LC 3212.86(c)). If an employee had paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5, or LC 4850 were due and payable. If an employee did not have those sick leave benefits, temporary disability benefits or LC 4800, LC 4800.5, or LC 4850 benefits were paid from the date of disability. There was no waiting period for temporary disability benefits (LC 3212.86(d)(1)).

To qualify for temporary disability or LC 4800, LC 4800.5, or LC 4850 benefits, the employee had to satisfy either of these (LC 3212.86(d)(2)):

  1. If the employee tested positive or was diagnosed with COVID-19 on or after May 6, 2020, she or he was certified for temporary disability within the first 15 days after the initial diagnosis, and recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
  2. If the employee tested positive or was diagnosed with COVID-19 before May 6, 2020, she or he obtained a certification no later than May 21, 2020, documenting the period for which she or he was temporarily disabled and unable to work, and must have been recertified for temporary disability every 15 days thereafter for the first 45 days following diagnosis.

The temporary disability had to be certified by a physician holding a physician’s and surgeon’s license issued per Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code (LC 3212.86(d)(3)).

Labor Code § 3212.87 –– Presumption for Front-line Workers

LC 3212.87 established a COVID-19 presumption for California front-line workers. Specifically, it covered (LC 3212.87(a)):

  1. active firefighting members, whether volunteers, partly paid or fully paid, of all of these departments:
    1. a fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision;
    2. a fire department of the University of California and the California State University;
    3. the Department of Forestry and Fire Protection (Cal Fire);
    4. a county forestry or firefighting department or unit;
    5. the Department of State Hospitals;
    6. the Department of Developmental Services;
    7. the Military Department;
    8. the Department of Veterans Affairs (CalVet).
  2. active firefighting members of a fire department that serves a U.S. Department of Defense installation and who are certified by the U.S. Department of Defense as meeting its standards for firefighters;
  3. active firefighting members of a fire department that serves a National Aeronautics and Space Administration (NASA) installation and who adhere to specified training standards;
  4. active firefighting members of a fire department that provides fire protection to a commercial airport regulated by the Federal Aviation Administration (FAA) and are trained and certified by the State Fire Marshal as meeting the specified standards;
  5. specified peace officers who are primarily engaged in active law enforcement activities;
  6. fire and rescue services coordinators who work for the Office of Emergency Services (OES);
  7. an employee who provides direct patient care, or a custodial employee in contact with COVID-19 patients, who works at a health facility;
  8. an authorized registered nurse, emergency medical technician-I, emergency medical technician-II or emergency medical technician-paramedic;
  9. an employee who provides direct patient care for a home health agency under Health and Safety Code 1727;
  10. employees of health facilities, other than those described in No. 7, if the employer cannot establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19;
  11. a provider of in-home supportive services, when he or she provides the services outside his or her own home or residence.

In order to receive the presumption under LC 3212.87, employees had to establish that (LC 3212.87(b)(i)(3)):

  1. They performed labor or services at their place of employment at the employer’s direction on or after July 6, 2020.
  2. They tested positive for COVID-19 within 14 days after a day that they performed labor or services at their place of employment at the employer’s direction.
  3. Their place of employment was not their home or residence.

The positive test had to be a PCR (polymerase chain reaction) test or any other viral culture test that has the same or higher sensitivity and specificity as the PCR test approved for use or approved for emergency use by the U.S. Food and Drug Administration (FDA) to detect the presence of viral RNA. It did not include serologic testing, also known as antibody testing (LC 3212.87(i)(2)).

The date of injury was the last date before the positive test that the employee performed labor or services at his or her place of employment at the employer’s direction (LC 3212.87(b)(2)). The presumption extended to such employees following termination of service for a period of 14 days, commencing with the last date actually worked. If those conditions were met, the injury or death related to COVID-19 was presumed to arise out of and in the course of the employment. The presumption was disputable and could be controverted by "other evidence" (LC 3212.87(e)).

LC 3212.87 also required liability for a claim of illness related to COVID-19 to be denied within 30 days after the date the claim form was filed pursuant to LC 5401. If it was not denied within the 30-day period, the illness was presumed compensable, and the presumption was rebuttable only by evidence discovered subsequent to the 30-day period (LC 3212.87(f)).

If the presumption applied, per LC 3212.87(c), an employee was entitled to regular workers' compensation benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits. LC 3212.87 did not cover expenses related to a self-quarantine or mandatory quarantine for employees who did not test positive.

Per LC 3212.87, if an employee had paid sick leave benefits specifically available in response to COVID-19, they must have been used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5, or LC 4850 were due and payable. If an employee did not have those sick leave benefits, he or she was provided temporary disability benefits or other benefits, if applicable, from the date of disability without application of the normal waiting period for temporary disability benefits (LC 3212.87(d)). Unlike for injuries related to COVID-19 before July 6, 2020, there was no requirement for employees to be certified for temporary disability every 15 days for the first 45 days following the COVID-19 diagnosis.

Labor Code § 3212.88 –– Presumption for Outbreak at Place of Employment

LC 3212.88 established a COVID-19 presumption for employees who are not covered by LC 3212.87. It applied to employees who tested positive during an outbreak at their place of employment if the employer had five or more employees (LC 3212.88(a)).

LC 3212.88 specified that an “outbreak” existed if, within 14 calendar days, one of these occurred at a specific place of employment (LC 3212.88(m)(4)):

  1. Four employees tested positive for COVID-19 at a specific place of employment with 100 employees or fewer.
  2. Four percent of the number of employees tested positive for COVID-19 where more than 100 employees reported to the specific place of employment.
  3. The place of employment was 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 community college district chancellor, school president, or school superintendent.

The statute clarified that if an employee performed in multiple places of employment within 14 days of her or his positive test, the test must be counted for the purpose of determining the existence of an outbreak at each of those places of employment, and if an outbreak existed at any one of them, that was the employee’s “specific place of employment” (LC 3212.88(m)(3)(B)).

Establishing Presumption

To qualify for the presumption, these had to be established (LC 3212.88(b)(m)(3)(A)):

  1. The employee tested positive for COVID-19 within 14 days after a day that she or he performed labor or services at her or his place of employment at the employer’s direction.
  2. The employee performed labor or services at her or his place of employment at the employer’s direction on or after July 6, 2020.
  3. The employee’s positive test occurred during a period of an outbreak at her or his specific place of employment (that is, the building, store, facility, or agricultural field where she or he performed work at the employer’s direction).
  4. The specific place of employment was not the employee's home or residence, unless she or he provided home health-care services to another individual at her or his home or residence.

The positive test had to be a PCR (polymerase chain reaction) test or any other viral culture test that has the same or higher sensitivity and specificity as the PCR test approved for use or approved for emergency use by the FDA to detect the presence of viral RNA. It did not include serologic testing, also known as antibody testing (LC 3212.88(m)(2)).

If those conditions were met, the injury or death related to COVID-19 was presumed to arise out of and in the course of the employment. The date of injury was the last date before the positive test that the employee performed labor or services at his or her place of employment at the employer’s direction (LC 3212.88(b)(2)). The presumption was extended to any covered employee following termination of service for a period of 14 days, commencing with the last date actually worked in the specified capacity at the employee’s place of employment (LC 3212.88(e)(1)).

The presumption was disputable and, per LC 3212.88(e)(1), could be controverted by "other evidence." LC 3212.88 didn't limit the evidence that could be used to rebut the presumption. Moreover, per LC 3212.88(e)(2), "Evidence relevant to controverting the presumption may include, but is not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection." As discussed below, however, it was very difficult to overcome the presumption.

LC 3212.88(f) required liability for a claim of such illness to be rejected within 45 days after the date the claim form was filed. If the claim was not denied within the 45-day period, the claim was presumed compensable and the presumption was rebuttable only by evidence discovered subsequent to the 45-day period.

Available Benefits

An employee covered by LC 3212.88 was entitled to benefits including full hospital, surgical, medical treatment, disability indemnity, and death benefits (LC 3212.88(c)). If an employee had paid sick leave benefits specifically available in response to COVID-19, they had to be used and exhausted before any temporary disability benefits, benefits under LC 4800, LC 4800.5, or LC 4850, or Education Code (EC) 44977, EC 44984, EC 45192, EC 45196, EC 87780, EC 87787, EC 88192, or EC 88196 were due and payable. If an employee did not have those sick leave benefits, the employee was to be provided the appropriate benefits from the date of disability. The waiting period for temporary disability benefits did not apply (LC 3212.88(d)).

Reporting Requirements

LC 3212.88(i) established reporting requirements for employers. When an employer knew or reasonably should know that an employee tested positive for COVID-19, it had to report all of these within three business days to its claims administrator in writing via electronic mail or facsimile:

  1. An employee tested positive. (For the initial report, the employer must not have provided any personally identifiable information regarding the employee who tested positive for COVID-19 unless he or she asserted that the infection was work related or had filed a claim form pursuant to LC 5401.)
  2. An employee tested positive on a specified date, which was the date the specimen was collected for testing.
  3. During the 14-day period preceding the date of an employee's positive test, the address or addresses of employment where he or she worked had to be specified.
  4. In the 45-day period preceding the last day the employee worked at each specific place of employment, the highest number of employees who reported to work at his or her specific place of employment had to be provided.

The statute also gave employers 30 business days starting Sept. 17, 2020 to report to their claims administrator, in writing via fax or email, when they knew that an employee tested positive for COVID-19 between July 6, 2020 and Sept. 16, 2020. For such positive tests, employers had to report the first three items above and, in place of the fourth, 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 (LC 3212.88(k)(2)).

The claims administrator was required to use the information reported by the employer to determine if an outbreak had occurred for the purpose of administering a claim (LC 3212.88(k)(1)). The claims administrator had to use the information to retroactively determine if an outbreak occurred from July 6, 2020, to the effective date of the statute for the purpose of applying the presumption (LC 3212.88(k)(2)). A claim was not part of an outbreak if it occurred during a continuous 14-day period in which the requisite number of positive tests was not met. The claims administrator was required to continually evaluate each claim to determine whether the requisite number of positive tests occurred during the surrounding 14-day periods (LC 3212.88(l)).

Penalties for False or Misleading Reporting

LC 3212.88(j) directed that an employer or other person acting on behalf of an employer who intentionally submitted false or misleading information or who failed to submit the required information was subject to a civil penalty of as much as $10,000 to be assessed by the Labor commissioner.

The commissioner could issue a citation following an inspection or investigation. The citation could be served personally or by registered mail. Each citation had to be in writing and describe the nature of the violation, including reference to the statutory provision alleged to have been violated (LC 3212.88(j)(1)).

An employer or person who did not contest a citation could pay to the office of the Labor commissioner the amount specified for the violation within 15 business days after issuance of the citation (LC 3212.88(j)(3)). A party who wanted to contest a citation or the proposed assessment of a civil penalty had to notify the office of the Labor commissioner within 15 business days after service of the citation of the request for an informal hearing. The Labor commissioner or her or his deputy or agent was required to hold a hearing within 30 days (LC 3212.88(j)(2)).

At the end of the hearing, the citation or proposed assessment of a civil penalty had to be affirmed, modified, or dismissed. The decision consisted of a notice of findings, findings and order, and had to be served on all parties within 15 days after the hearing by regular first-class mail. Any amount found due by the Labor commissioner as a result of a hearing became due and payable 45 days after notice of the findings and written findings and order were mailed to the party assessed (LC 3212.88(j)(2)).

A writ of mandate could be taken from the finding to the appropriate superior court, as long as the party agreed to pay any judgment and costs ultimately rendered by the court against the party for the assessment. The writ of mandate had to be taken within 45 days of service of the notice of findings, findings and order (LC 3212.88(j)(2)). If the writ of mandate was unsuccessful, the Labor commissioner was entitled to recover costs and attorney fees (LC 3212.88(j)(4)).

Study on Impact of COVID-19 Claims

In addition to the presumptions, SB 1159 added LC 77.8, requiring the Commission on Health and Safety and Workers’ Compensation to conduct a study of the impact of COVID-19 claims on the workers’ compensation system. The study was to review the overall impact on indemnity benefits, medical benefits, and death benefits, including differences in the effects across different occupational groups. The study also was to include the effect of LC 3212.87 and LC 3212.88. It is available at: https://www.dir.ca.gov/chswc/Reports/2022/RAND-COVID-claims-presumptions.pdf.

See Also

References

  1. Smith v. Workmen's Comp. Appeals Bd. (1975) 45 Cal. App. 3d 162, 166.
  2. Rio Linda Union School District v. WCAB (Scheftner) (2005) 70 CCC 999, 1006-07. See also Callet v. Alioto (1930) 210 Cal. 65, 67-78.


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