Workers Face Increasing Risks From The Highly Contagious COVID-19 Omicron Variant
The winter season is challenging workers and their loved ones with the ongoing health safety concerns of the COVID-19 Coronavirus. Workers are facing greater risks of COVID-19 infections, especially from the highly transmissible COVID-19 Omicron variant.
It is imperative that we take steps to protect ourselves and others from this damaging coronavirus. The best way to avoid severe illness, hospitalization, and death from COVID-19 is by getting vaccinated and boosted against the virus. Infections, hospitalizations, and deaths are largely occurring among unvaccinated populations.
Many employers are now requiring employees to show proof of vaccination and/or regularly testing to show a negative COVID-19 test. Workers should prioritize safety measures by protecting themselves and others in the workplace from COVID-19. Workplace health safety protocols are subject to ongoing modifications at the local, county, state, and federal levels in response to the COVID-19 pandemic.
Given the highly transmissible nature of the omicron variant, the California Department of Public Health (“CDPH”) is extending the requirement that masks be worn in all indoor public settings even if you are vaccinated against COVID-19. The CDPH recommends wearing a good-fitting, high-quality mask. Regardless of the type of mask you wear, it should be a well-fitted mask that has no gaps between the face and mask, such as above the nose or at the sides.
Senate Bill 1159 (SB 1159) Remains in Effect until January 1, 2023
The Governor of the state of California, Gavin Newsom, and the California state legislature are enacting laws to address COVID-19. Effective 9/17/20, Governor Newsom signed into law Senate Bill 1159 (SB 1159), effectively codifying the prior Executive Order of May 6, 2020. Combined, this bill (in addition to other new legislation) aims to increase worker safety and expand access to California workers’ compensation benefits (“WC”) for employees that contract COVID-19 due to their job.
This bill, which will remain in effect until it expires on 1/1/23, enables workers and the public to take appropriate steps to protect themselves and their loved ones, obtain benefits related to COVID-19 exposure, and mitigate the spread of COVID-19.
SB 1159 makes it easier for essential employees that contract COVID-19 on the job to obtain WC benefits since this bill creates a rebuttable presumption the COVID-19 is presumed to be a work injury for purposes of WC benefits. Covered employees are eligible to make a claim for all WC benefits existing under the current law.
One of the presumptions under SB 1159 under Labor Code section 3212.86 applies to employees that performed work between 3/19/20 and 7/5/20 that was not at the employee’s residence, that test positive for or were diagnosed with COVID-19 within 14 days after a day of work.
There is also a presumption provided by SB 1159 in Labor Code section 3212.87 for certain classifications of frontline workers including firefighters, healthcare workers, other employees working in health care facilities, and in-home supportive services employees providing services outside of their own home or residence. This presumption applies if the frontline worker performs work on or after 7/6/20, that is not at the employee’s residence, and tests positive for COVID-19 within 14 days after a day of work.
In addition, SB 1159 has a presumption in Labor Code section 3212.88 that applies even if an employee is not necessarily a “frontline employee” or “essential employee”, but contracts COVID-19 due to an outbreak of COVID-19 at their workplace if the employer employs five or more employees. The employee must show that they tested positive for COVID-19 within 14 days after a day of work at their place of employment on or after 7/6/20 and that there was an “outbreak” at the workplace. An “outbreak” is specifically defined under the law for workers’ compensation purposes.
Under SB 1159 the timeframe for the employer or WC insurance carrier to conduct its investigation to admit or deny the employee’s WC claim is shortened from the traditional 90-day delay period to 30 days for Labor Code sections 3212.86 and 3212.87, and 45 days for section 3212.88.
Other employees that do not specifically fit within the categories of frontline or essential employees or that are not exposed to an outbreak of COVID-19 in the workplace under SB 1159, may still have a “regular” workers’ compensation claim for COVID-19. This means that you are entitled to pursue WC benefits for COVID-19, even if you are not a covered employee under the presumptions of SB 1159.
Ford & Wallach is Your Guide
Our position is that ALL workers that develop COVID-19 in the workplace have a WC injury or illness including those that are asymptomatic, symptomatic or that pass away due to complications from the coronavirus. Other employees that do not specifically fit within the categories of SB 1159, may still have a “regular” workers’ compensation claim for COVID-19. This means that you are entitled to pursue WC benefits for COVID-19, even if you are not a covered employee under the presumptions of SB 1159. In addition to WC benefits for the COVID-19, you may be entitled to WC benefits for the other medical conditions affected by the COVID-19 infection.
Our experienced team of workers’ compensation attorneys is here to guide you through the California workers’ compensation system in this challenging time of crisis. We work closely with attorneys in other legal specialties such as employment law, personal injury, and Social Security. Ford & Wallach can refer you to these attorneys for matters that often overlap with a workers’ compensation injury.
Ford & Wallach offers a free case evaluation. Contact us by email or call 213.380.3140.