California’s COVID-19 Tracking Requirement Challenges Employers

SB 1159, signed into law in September, requires that when a California employer “knows or reasonably should know” that an employee has tested positive for coronavirus, it must report that positive case to its workers’ compensation carrier within three business days.

There is a lot of ground to cover in these reports and the legislation was passed without much publicity, so many employers may not even know about their obligations. And that could cost them: the fine for non-compliance is $10,000 per incident.

The law goes further than merely reporting a positive case: The report must include a number of details that employment law experts say will place a significant reporting burden on employers:

• The date the employee tested positive;
• The address or addresses of the employee’s place or places of employment during the 14-day period preceding the positive test, and
• The highest number of employees who reported to work in the 45 days preceding the last day the employee worked in the workplace.

The task will be made even more difficult if an employee works at multiple worksites, and an employer could have to spend a significant amount of time doing all that detective work.

Making the task even more difficult, California employers will have to go through the same process every time an employee catches COVID-19.

At its essence, the law creates a presumption that employees who suffer illness or death resulting from COVID-19 between July 6 this year and Jan. 1, 2023, contracted the virus at work, which makes them eligible for workers’ compensation benefits. If a worker dies, their dependents will be eligible for workers’ compensation death benefits that range from $250,000 to $320,000 depending on the number of dependents.

The presumption applies to all employees:

(1) who test positive during an outbreak at the employee’s specific place of employment; and (2) whose employer has five or more employees.

The term “injury” below includes illness or death resulting from COVID-19, and all of the following conditions must exist for the presumption to apply:

• The employee tests positive for COVID-19 within 14 days after a day that they performed labor or services at their place of employment;
• The date of injury shall be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test.
• The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

What is an ‘outbreak’?

An “outbreak” exists if, within 14 calendar days, one of the following occurs at a specific place of employment:

• If the employer has 100 employees or fewer at a specific place of employment, four employees test positive for COVID-19;
• If the employer has more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment test positive for COVID-19; or
• A specific place of employment 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 school superintendent due to a risk of infection with COVID-19.

The Takeaway: Be Prepared

The most important thing is that you are prepared for the paperwork and detective work you’ll have to engage in in case one of your workers’ contracts the coronavirus. You may want to put systems in place now so that gathering the information will be easier and you can set up an efficient system to get the information you’ll need in case of a COVID-19 infection at your workplace.