In light of the current Covid-19 pandemic, questions have been raised whether a person who becomes infected with the virus is entitled to Workers’ Compensation benefits. As with other work-related injuries such as slip and falls and repetitive work injuries, an employer is only liable for those injuries occurring during the course and scope of employment or arising out of the employment.
Senate Bill 1159
On September 17, 2020 Governor Newsom signed Senate Bill 1159, which provides two new rebuttable presumptions that an employee’s COVID-19 illness is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met. The new presumption laws encourage employers to comply with all health directives and guidance concerning safely reopening businesses to reduce risk of exposure and mitigate outbreaks in the workplace.
This law remains in effect only until January 1, 2023, and as of that date is repealed.
Front Line Workers
Frontline workers, as defined, include healthcare workers, fire fighters, and peace officers. The “firefighters” to which this presumption applies is fairly broad in scope and includes state and local fire departments, airport fire departments, fire departments serving state universities, and Department of Forestry, among other firefighting organizations. Peace officers would apply to law enforcement as well as Department of Corrections employees.
Also included are healthcare employees who provide direct patient care, or a custodial employee in contact with COVID-19 patients, who work at a health facility. For the purposes of this section health facilities include: general care hospitals, acute psychiatric hospitals, skilled nursing facilities, intermediate care facilities with a 4-8 person capacity and 24 hour care, and hospice facilities. Also included are authorized registered nurses, emergency medical technicians, and emergency medical technician-paramedics.
Other healthcare workers
This presumption would also apply to employees of health facilities other than those described above. However for these employees, the presumption shall not apply if the employer can establish that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19. Also included are providers of in-home supportive services when they provide the in-home supportive services outside their own home or residence.
Injury from Covid-19 will apply if the employee has tested positive for 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. The date the employee performed labor or services at the employee’s place of employment at the employer’s direction, was on or after July 6, 2020 and prior to the positive test.
Other Employees
Labor Code section 3212.88 was created to address workers other than the “frontline workers” discussed above. The above presumptions and benefits are in effect in situations involving an “outbreak” at a place of employment. This presumption applies to employers with more than 5 employees only.
An “outbreak” is deemed to have occurred where more then 4 employees test positive for Covid-19 where there are fewer than 100 employees. For employers with more than 100 employees an outbreak is deemed to have occurred if more than 4% of employees test positive.
This section will apply if an employee tests positive within 14 days of the last day of work and after July 6, 2020. This section will also apply if a specific place of employment is ordered to close by a state or local health department, or a school superintendent.
Benefits Available
Available compensation includes 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, those benefits shall be used and exhausted before any Workers Compensation temporary disability benefits are available. If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits from the date of disability. There is no waiting period for temporary disability benefits, unlike many other types of work related injuries.
The foregoing description is not exhaustive of the provisions of SB 1159. A worker claiming injury because of Covid-19 exposure should consult with an attorney to see if they meet the criteria for receiving Workers Compensation benefits.
Protection Against Retaliation
California labor laws also protect an employee from workplace retaliation. Employees have the following protections at work:
It is unlawful for an employer to lay off or terminate an employee for refusing to perform work that both violates an occupational safety and health standard or order, and creates a real and apparent hazard placing the employee or their fellow employees in imminent danger. (Labor Code §6311)
It is unlawful for an employer to retaliate against an employee for reporting noncompliance with local, state, or federal rules and regulations, including public health orders, for complaining of a violation of the law, or refusing to participate in an activity that violates such rules. (Labor Code §§1102.5, 6310.)
· It is unlawful for an employer to retaliate against an employee for utilizing paid sick leave. (Labor Code §6409.6)
Unlawful retaliation includes immigration related threats, such as reporting or threatening to report an employee’s immigration status to a federal, state, or local agency, or filing or threatening to file a false police report or a false report or complaint with any state or federal agency. (Labor Code §§244, 1019.)
Additional Claims
It is important for workers to understand that in addition to a claim for COVID-19, claims may be made for other work-related injuries. The most common of which are “Cumulative Trauma injuries”, or injury as a result of work overtime. These typically include injury to the neck, back, shoulders, and knees, among other body parts. These injuries are often overlooked by workers who are more focused on other aspects of their employment such as a slip and fall injury, or a claimed wrongful termination.
In many cases the claim for orthopedic injury may be worth more than a claim for COVID-19, especially where a worker has fully recovered. Injured workers should therefore consider this aspect in deciding whether to pursue a workers compensation claim.
