Governor Newsom signed SB 1159 on September 17, 2020 that created new laws, which impact California employers who have employees who test positive for COVID-19.

Specific aspects of the new law apply to California employers who have 5 or more employees. The new law states that if a COVID-19 outbreak occurs at a place of employment it is assumed employees who test positive for COVID-19 contracted it at work.
This law creates new reporting obligations for employers.

Definition of an Outbreak

An outbreak occurs if, within a 14-day calendar period, one of the following happens:

    • Employers with 100 employees or less at a specific work location and 4 or more employees test positive at that specific location; or
    • Employers with more than 100 employees at a specific work location and at least 4% of employees test positive at that specific location; or
    • A specific place of business is closed by local public health department, State Department of Public Health or school superintendent due to risk of infection with COVID-19.A “specific work location” means the building, store, facility or agricultural field where the employee worked at your direction.  Many workers may transition between multiple places of employment during their shift. So tracking the locations that they are required to work at is essential.

Reporting Requirements

Employers are now required to report to their claims administrator when the employer is aware that an employee tested positive for COVID-19.  The report must be made within 3 business days. 

Employers are required to report the following to the claims administrator:

    • Notice that an employee has tested positive. Do not include any Personal Identifiable Information (such as SSN, DOB, etc.).
    • The date the specimen was collected for the positive test.
    • Positive PCR COVID-19 test or other FDA approved viral test. Serologic (antibody) testing is not a viable test.
    • All locations where employee worked at your direction during the 14-day period prior to the positive test result.
    • The highest number of employees who worked at the employee’s specific work location(s) in the 45-day period preceding the last day that the employee worked there.

If an employer is aware of an employee who tested positive prior to the effective date of this statute, between July 6, 2020 and September 16, 2020 they have until October 29, 2020 to report those cases.

In addition, the employee must:

    • Have worked on or after 7/6/2020; and
    • Have worked outside their home or residence at the employer’s direction; or worked to provide home health care services to another individual at their home or residence; and
    • Have a positive PCR COVID-19 test or other FDA approved viral test (does not include serologic (antibody) test) within 14 days after performing the labor or services; and
    • The positive COVID-19 test must have occurred during a period of outbreak at the employee’s specific place of employment.

Additionally, if a claim becomes accepted under this section an employee is required to exhaust any paid sick leave benefits specifically available in response to COVID-19 before temporary disability benefits may be paid.

Key Reporting Questions

What if the employee refuses to give me their test result?

    • You do not have to report employees who do not provide you with their written test results. However, if you are able to verify an employee has a positive PCR test (i.e. they show you their positive PCR results but do not provide you a copy) you must report it.

When should I report this data?

    • If you have five (5) or more total employees;
      • Within three (3) business days of knowledge (or when it should reasonably have been known) that there was a positive test on or after September 17, 2020.
      • If you know of positive test results that occurred between July 6, 2020, and prior to September 17, 2020, you must report each positive test occurrence by October 29, 2020.
    • If you have less than five (5) total employees, you are not required to report any additional data outside the claim reporting process.

Do I have to submit a COVID-19 Positive Test report even if my employee does not want to pursue a workers compensation claim?

    • Yes, the law now requires employers with more than five (5) total employees to report every employee who tests positive for COVID-19 by a PCR (Polymerase Chain Reaction) test regardless of whether or not a workers’ compensation claim will be filed.

Note: reporting a positive case does not generate a claim nor does a claim qualify as a report.

What if I know it was not work related (i.e. employee just got back from vacation, his/her family got it first, etc.)

    • You are required to report all positive cases, regardless of if you believe your employee did not get it at work.

With each new regulation, compliance related to COVID-19 protocols can be a challenge for employers. OmegaComp HR will continue to provide up to date information to assist with this challenge.