Governor Newsom signed Senate Bill 1159 (SB 1159) on September 17, 2020. It created new laws that affect California employers with employees who test positive for COVID-19. One of these, Labor Code Section 3212.88, applies to California employers who have five (5) or more employees. It established that if a COVID-19 outbreak occurs at a place of employment, it may be assumed that employees who test positive for COIVD-19 contracted it at work.
What does this mean?
This law creates new reporting obligations for employers. Employers must report to their claims administrator via email or fax when they are aware that an employee tested positive for COVID-19. Positive test results must be by a Polymerase Chain Reaction (PCR) test or other viral testing approved by the Federal Drug Administration (FDA). Positive antibody tests should not be reported.
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.
What type of COVID-19 tests do I need to report?
Report positive COVID-19 results taken from a PCR test (or other viral testing approved by the FDA). Do not report positive antibody tests.
How do I report this data?
In the event of a positive COVID case, please contact us at DJM Insurance as we will guide you every step of the way.
Are there penalties for not reporting?
Employers may be subject to civil penalty of up to $10,000 as well as a potential citation for failure to report the required data to claims administrator or for submitting false information.
What is a PCR test?
A PCR (typically a nasal swab) test can determine if someone currently has a COVID-19 infection. For patients who currently have symptoms that could be due to COVID-19.
Why does State Fund need this information?
Labor Code 3212.88 includes a new “Outbreak” presumption. This means if a certain number of your employees at a specific location test positive for COVID 19 within a specified period, then a workers’ compensation claim filed by an employee is likely to be considered work related and the employee may be eligible for benefits. Your carrier will determine if an outbreak has occurred based on employer reported information, so it is very important for employers to report timely and accurately.
What do I have to report?
You are required to report every employee with a positive PCR test. Information required includes:
Do I report negative tests too?
No, only report positive PCR tests or other viral tests approved by the FDA.
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.
What if the employee refuses to give me their test results?
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.
Will these claims affect my experience modification (x-mod)?
No, COVID -19 claims are excluded from experience modification calculations.
Do I have to submit a COVID-19 Positive Test Reporting Form even if my employee does not 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.
When I submit a COVID-19 Positive Test Form will it also create/file a workers’ comp claim?
No. However, if an employee believes their exposure may be work related, please provide them with an Employee Claim Form (DWC-1). If you wish to submit a claim, please call us at 866-961-4570 and we direct you to the necessary forms & reporting. All reporting forms are different, per carrier.
What does specific work location mean?
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.
When has an outbreak occurred?
Your carrier will determine if an outbreak has occurred based on employer reported information, so it is very important for employers to report timely and accurately. An outbreak is defined as:
Employer is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a superintendent due to risk of infection with COVID-19.
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