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Pandemic Presumptions – CA Workers’ Compensation COVID19 LegislationThere are new changes to California Workers Compensation laws related to COVID-19 claims. These changes were passed by the California Legislature on 8/31/2020 and signed into law by Governor Newsom on 9/17/2020. They apply retroactively to July 6, 2020 and remains effective until January 1, 2023. This guide provides details of the new laws, which are broken into three Labor Code sections.COVID cases between 3/19/20 through 7/5/20: Governed by Labor Code 3212.86 – Newsom first executive orderFor a claim to be presumed compensable for workers’ compensation during this time period an answer of yes must be applied to all factors below:Did the employee perform work, outside of their home, at the employers’ direction between 3/19/20 – 7/5/20?Within 14 days of the last day worked between 3/19/20-7/5/20 did the employee test positive for COVID19?If there was not a positive test for COVID, was the employee diagnosed with COVIDD19 by a licensed medical doctor?If YES for all of the above, the COVID claim would be presumed compensable under workers’ compensation.Rebuttable within 30 daysDate of injury is defined as the last date the employee performed work at the employers’ directionCOVID between 7/6/20 – 9/17/20 – REPORTING REQUIREMENTSEmployers MUST RETROACTIVELY REPORT ANY TEST POSITIVE COVID19 employees between 7/19/20 through 9/17/20 by OCTOBER 30, 2020Employers are required to report to their workers’ compensation carriers the following:For each separate location, any employees who tested positive for COVID19For each test positive location, the highest number of employees per location who worked within the same location of test positive caseReporting is to be done by:FAX OR EMAIL to workers’ compensation insurer by OCTOBER 30, 2020Must include TEST DATE of COVID test positive (not the date results came back)Employers are to omit personal information of COVID positive employee unless the employee is filing a workers’ compensation claimFailure to comply with the above is subject to civil penalty up to $10,000 by Labor CommissionerEmployer Reporting Requirements for any TEST POSITIVE AFTER 9/18/20Within 3 BUSINESS DAYS OF ANY TEST POSITIVE:For each test positive employee, the employer must provide to the claim’s administrator:The address of the where the test positive employee worked for the 14 days prior to COVID positiveThe highest number of employees who worked at that location(s) on any given day for the 45 days prior to the test positive employee’s last day of workThe above information is to be reported:Via FAX or EMAIL only Include the COVID TEST DATE of the employeeOmit personal information of the employee unless a WC claim is being filedNegative COVID tests do not need to be reportedAny POSITIVE test, regardless if work related or not, is to be reportedIf any employer knows or reasonably should have known about a test positive it is to be reportedCOVID cases from 9/17/20 through 1/1/2023:Labor Code 3212.88:Applies to employers with 5 or more employeesEmployers with 5 or greater if YES applies to the following:Work occurred outside of employee’s home at employer’s directionWork occurred between 7/6/20 and 1/1/23Specific place of employment is defined as employer’s building, store, facility, fieldEmployee received POSITIVE COVID19 VIRAL TESTING (not antibody) within 14 days of the last day working for the employerBy reporting of all positive COVID cases per the REPORTING REQUIREMENTS, was an OUTBREAK determined by the claims’ administrator?Outbreak is defined by:Employers with 100 or less employees have 4 or more test positive cases within 14 days of each other Employers with greater than 100 employees have 4% or greater test positive cased within 14 days of each otherOr when OSHA, County Health Department, State Department of Health or any like agency has ordered closure of specific place of employment IF YES TO THE ABOVE and an OUTBREAK is determined by the CLAIMS ADMINISTRATOR, any COVID19 CLAIM UNDER WORKERS’ COMPENSATION IS PRESUMED COMPENSABLEIF an OUTBREAK is determined and a workers’ compensation for COVID-19 is filed:Insurance companies have 45-days to rebut industrial causationRebuttal can be by demonstrating:The safety measures the employer has in place (mask requirements, sanitization stations, temperature taking prior to access to worksite)The employee’s non-occupational risks (family member has COVID)Benefits, if accepted:No 3-day waiting period for temporary disabilityIf an employer provides paid COVID leave, temporary disability would not start until employer paid leave is exhaustedIf employee alleges death as a result of COVID, there is no presumption for industrial death. The legal standard is if the employment was the contributing cause of death the claim for death benefits would be compensable ................
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