Updates to CA SB1159 & CA AB685

Dec 9, 2022 | Claims Insights, Legal Notices

New California Assembly Bills Extend Preexisting Requirements

The new Assembly Bill No. 1751, approved by California Governor on September 29, 2022, sunsets the existing COVID-19 presumption and claim requirements put in place by Senate Bill No. 1159, and extends the date from January 1, 2023 to January 1, 2024.

View Bill No. 1751

Likewise, Assembly Bill No. 2693 adds to Assembly Bill No. 685 (AB 685) and modifies occupational safety standards to require employers to provide notice and report information related to COVID-19 workplace exposure within one day of notice of the exposure. The bill also expanded Cal/OSHA’s authority to enforce COVID-19 related notice requirements and impose civil penalties for an employer’s failure to comply. This bill extends the applicability of AB 685 from January 1, 2023 to January 1, 2024. Among other provisions, the bill requires that if an employer receives notice of potential exposure to a “qualifying individual”, the employer must take specific steps to notify employees within one business day. The bill prohibits employers from requiring employees to disclose medical information unless otherwise required by law and from retaliating against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate. Additionally, the bill provides that if an employer is notified that the number of its COVID-19 cases meets the definition of an outbreak, as defined by the California Department of Public Health, the employer must notify its local public health agency within 48 hours of the names, number, occupation and worksite of the “qualifying individuals”. Further, AB 685 included potential COVID-19 exposure as an imminent hazard and expanded Cal/OSHA’s authority to prohibit entry into the workplace on this basis. Any restrictions imposed by Cal/OSHA must be limited to the immediate area where the imminent hazard exists and must not prohibit any entry within a workplace that does not cause a risk of infection. Finally, Cal/OSHA may not impose restrictions that would materially interrupt “critical government functions” essential to ensuring public health and safety, or the delivery of electrical power or water.

WCIRB Bill Summaries

AB 685 COVID-19 Employer Notice & Reporting Requirements

Dec 31, 2020 | Claims Insights

California Passes AB 685 COVID-19 Bill

Please note as of September 29, 2022, AB 2693 extended AB 685 dates. Read more here

As the coronavirus pandemic continues, the State of California is working to enforce elements of COVID-19 management and controls. At this time, you may be aware of SB 1159 which requires employers to report employee COVID-19 cases to their workers compensation claims administrator. Another reporting bill, AB 685, goes into effect on January 1, 2021. This bill requires employers to notify employees of potential COVID-19 exposures in the workplace and to report outbreaks to the local public health department.

Please review the employer notice and reporting requirements below.

AB 685 COVID-19 Employer Notice & Reporting Requirements

Go to our website at www.bhhc.com to report a claim online, by email, or by phone. Keep in mind, COVID-19 regulations and guidance are a dynamic evolving issue; make sure you research the CDC and/or OSHA websites for the most current information.

For additional information, please reach out to Loss Control at losscontrol@bhhc.com and visit the Cal/OSHA FAQs website.

Contact info for Local Health Services/Offices

SB1159 Information for Policyholders

Sep 18, 2020 | Claims Insights

California Governor Newsom Signs SB 1159 Into Law

Please note as of September 29, 2022 AB 1751 has extended SB 1159 dates. Read more here

There 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.

BHHC’s SB1159 COVID Tracker
(requires Chrome, Safari, or the latest version of Edge)

SB1159 Information for Policyholders

They apply retroactively to July 6, 2020 and remains effective until January 1, 2024. This guide provides details of the new laws, which are broken into three Labor Code sections.

Regardless of whether your employee falls into one of the categories outlined below, if they allege a COVID-19 positive diagnosis is work-related you must provide them with a DWC-1 Claim Form and report the claims to BHHC within 24 hours of knowledge.

Go to our website at www.bhhc.com to report a claim online, email or by phone.

Presumption for Frontline and Healthcare Workers – Labor Code 3212.87

This part of the new law pertains to Frontline and Healthcare workers. COVID-19 is presumed to be work-related for Frontline and healthcare workers if an employee worked at the employer’s place of business at the employer’s direction on or after July 6, 2020 AND the employee tested positive for COVID-19 within 14 days after working at the employers location AND is one of the defined Frontline or Healthcare workers defined below.

Frontline worker is defined as Firefighters, Peace Officers, employees who provide direct patient care and who work at a health facility, custodial employees in contact with COVID-19 patients and who work at a health facility, EMT’s, employees who provide direct patient care for a home health agency and providers of in-home supportive services, when provided outside their own home or residence.

There is a 30-day timeframe to determine if COVID meets the above standard.

If an employee tests positive and is one of the defined Frontline or Healthcare workers defined above, employer must provide the employee with a DWC-1 Claim Form and report the claim to BHHC within 24 hours of knowledge if the employee completes the DWC-1 Claim Form or communicates that it is work related.

Paid sick leave benefits specifically available in response to COVID-19 (FFCRA) must be exhausted before any temporary disability benefits are due. Click here for more information on paid sick leave benefits.

There is a post-termination provision that allows employees covered by this law to receive benefits of this presumption for up to 14 days following termination starting with the last day they worked at the employer’s place of employment.

Outbreaks – For all Employees other than Frontline and Healthcare Workers – Labor Code 3212.88

This section of the law applies to any employee other than Frontline workers and Healthcare workers who test positive during an “outbreak” at the employer’s place of business if the employer has 5 or more employees.

COVID-19 is presumed work-related if an employee worked at the employer’s place of business at the employer’s direction on or after July 6, 2020 and the following two elements are met:

The employee tested positive for COVID-19 within 14 days after working at the employer’s location

AND

The positive test occurred during an “outbreak” at the employer’s specific location.

An “outbreak” is defined as a COVID-19 occurrence at a specific employment location within a 14-day period AND meets one of the following:

If an employer has 100 employees or less at a specific location and 4 or more employees test positive for COVID-19; OR
If an employer has more than 100 employees at a specific location and 4% of the employees test positive for COVID-19; OR
The local public health department, State Dept. of Public Health or OSHA or school superintendent orders the specific place of employment to close due to risk of COVID-19 infection.

A specific location or place of employment is a building, store, facility or agricultural field where an employee performs work at the employer’s direction. An employee’s home is not considered a specific place of employment unless the employee provides home health care services to a client at the employee’s home. An employee may have more than one specific place of employment if they worked in multiple locations within the 14-day period before their positive test.

There is a 45-day timeframe to determine if COVID meets the above standard.

Employer Reporting Requirements for “Outbreaks” –

When an employer knows or reasonably should know that an employee has tested positive for COVID-19, they must email the attached Covid Tracking Tool to CovidReporting@bhhc.com within 3 business days. The report must include all of the following:

The fact that an employee has tested positive, regardless if work-related or not.
- Employers should not include any personal information regarding the employee who tested positive for COVID-19 unless the employee asserts it is work-related or files a claim form.
The date the specimen was collected for the employee’s COVID-19 test.
The specific address or location of the employee’s place(s) of employment during the 14-day period preceding the date the test specimen was collected.
The highest number of employees who reported to work at the specific location(s) in the 45-day period before the last day the COVID-19 positive employee worked there.

BHHC will use this information to help determine if an “outbreak” has occurred (4/4% criteria). If it has, we will provide the employer with a list of employees’ IDs who have tested positive for COVID-19. It is the employer’s responsibility to provide a DWC-1 Claim Form to each of these employees so that they can submit a claim if they choose.

Each employer is responsible for communicating to the employees listed that they were part of an outbreak. It is the employer’s responsibility to provide a DWC-1 Claim Form to any employees who believe their case is work-related so that they can submit a claim, if they choose. Employers are not required to report a claim unless the employee completes a Claim Form or communicates they believe it is work-related.

Fines up to $10,000.00 may be imposed by the Labor Commissioner if it is found that an employer has intentionally submitted false or misleading information or fails to submit information regarding COVID-19 cases, regardless of whether they are work-related or not.

Governors original Executive Order is now Labor Code 3212.86

This section codified Governor Newsom’s Executive Order which stated COVID-19 is presumed to be work-related if an employee worked at the employer’s place of business at the employer’s direction between March 19 and July 5, 2020 AND the employee tested positive for COVID-19 within 14 days after working at the employer’s location OR the employee was diagnosed with COVID-19 within 14 days and the diagnosis is confirmed through testing with 30 days of receiving diagnosis.

There is a 30-day timeframe to determine if COVID meets the above standard.

Keep in mind, COVID-19 regulations and guidance are a dynamic evolving issue; make sure you research the CDC and/or OSHA websites for the most current information. If in doubt with any of these guidance procedures, or if you require any additional help, please contact Customer Care at 800-661-6029 or email clientservices@bhhc.com. Thank you and stay healthy.

COVID-19 Claim Guidance for Employers

Aug 14, 2020 | Claims Insights

COVID-19 Claim Guidance for Employers

Amidst the chaos of the corona virus, Berkshire Hathaway understands that many employers have questions on responding to COVID-19 related claims. In order to focus their efforts on establishing good hygiene practices in the workplace, OSHA had recently updated the requirements for recording COVID-19 illnesses for industries outside of emergency medical services, firefighting and law enforcement. Therefore, we have created some guidance to follow if any of your employees may be faced with any COVID-19 related illness or death. Prior to using the guidelines below, check for updated guidance on responding to COVID-19 claims from the Centers for Disease Control and Prevention (CDC) and/or OSHA.

Responding to a COVID-19 claim
- If an employee, supervisor or other source informs you that an employee may have contracted COVID-19, document the following information from the employee or other reliable source (e.g. family member, friend, close contact) if the employee is unreachable:
  - Full name, address, phone number, DOB, and job title
  - Current state of health and any planned treatments
  - History and timeline of developed symptoms to present
  - Record of any/all medical treatment/testing including any OTC medicine. Most majority of test positives do not
  - Where and how the virus was contracted during work-period of time they were working outside of the home
  - Test results for any respiratory specimen verifying positive result for SARS-CoV-2. Keep these results confidential. If no testing has occurred, require the employee to get tested at an industrial clinic within your Medical Provider Network.
  - If they meet the criteria, file your worker’s compensation. (www.bhhc.com)
- BHHC Policyholders should report any COVID-19 claims when:
  - A positive test for COVID-19
  - Employee believes it was contracted while working outside the home
- If a fatality occurred during work hours: Proceed immediately below to “Recordkeeping and Reporting to OSHA.” Any fatality occurring in a place of employment needs to be reported immediately. You can tell them the cause of death and if work-related are still being investigated.
- COVID-19 Testing for SARS-CoV-2:
  - If the employee tests negative: You do not need to report the illness to OSHA or to BHHC. However, if any of the recording criteria are met in “Recordkeeping and Reporting to OSHA” below, then record the injury or illness as a non-related COVID-19 incident.
  - If the employee tests positive: Follow any existing protocols in response to your Infectious Disease Control Plan (if established), and advise the employee to self-quarantine at home for a minimum of 14 days prior to reevaluating their return to work.
  - If test results are unavailable: Although the Federal OSHA guidelines require a positive test result of SARS-CoV-2 to be considered a confirmed case, testing may not be available to all employees or special circumstances may occur where results are unavailable to employers. To ensure due diligence as an employer, Berkshire Hathaway recommends continuing to investigate the claim if any of the criteria in the next section are met.

For California customers
As of May 6th, 2020 the Executive Order signed by Governor Newsom requires that the following criteria must be met in order to be compensable:

The employee was working outside of their home by the direction of their employer sometime between March 19, 2020, and July 5, 2020.
Within 14 days after a day worked outside of the home as described above, the employee is determined to have COVID-19 based on either:

1: A positive test for COVID-19
2: A diagnosis of COVID-19 by a qualified physician or surgeon and verified by a test within 30 days

Multiple Senate bills are still pending which will likely extend the order. Further modifications may be made to the presumption criteria.

Accident Investigation
- Your trained, competent person for COVID-19 should conduct an Accident Investigation in coordination with the procedures in your Injury and Illness Prevention Program (IIPP). It should include the following information:
  - All reportable information under “Responding to a COVID-19 claim” above
  - A Work Related Section evaluating the validity of contracting the virus at work. Generally, an objective determination that the claim is work-related will be supported by substantial evidence (e.g. several employees also testing positive or showing noticeable symptoms for COVID-19 without alternative explanation). Topics include but are not limited to the following:
    - Identify exposures and interaction with the general public and their frequency during work
    - Contact tracing which identifies the employee’s exposures to other people within the last 14 days. Include all contact at work, home and in public.
    - Review any pre-shift testing/screening results and analyze any trends during the timeline of the employee’s claim and symptoms
    - Review any records within the last 14 days related to the company’s Infectious Disease Control Plan (if available), e.g. routine disinfection or cleaning inspection records
    - Review the employee’s compliance with your COVID-19 requirements
    - Work in tandem with your Worker’s Compensation carrier to investigate
  - If evidence from the work-related section results in an objective determination:
    - Report the illness to your local OSHA agency if it meets the recording criteria in “Recordkeeping and Reporting to OSHA”
    - File a claim with your Worker’s Compensation carrier (www.bhhc.com)
    - Record the illness in your OSHA 300 log
    - Advise the employee to self-quarantine for a minimum 14 days prior to reevaluating their return to work
  - If evidence does not objectively indicate result is work-related:
    - Advise the employee who tested positive to self-quarantine for a minimum 14 days prior to reevaluating their return to work
    - Maintain the Accident Investigation as a “near miss”
  - Advise all employees who worked with the affected employee to get tested
  - Review good hygiene practices and implement an infection control plan (if not established)

Record-keeping and Reporting to OSHA
- Employers exempt from maintaining an OSHA 300 log are not required to record the injury or illness regardless of COVID-19 determination
- Record the claim in your OSHA 300 log. Although testing results may be negative or unavailable, the following criteria is still required for recording any injuries or illnesses occurring in the workplace. The incident must result in one or more of the following to be OSHA 300 log recordable:
  - Death
  - Days away from work
  - Restricted work or transfer to another job
  - Medical treatment beyond first aid
  - Loss of consciousness
  - Significant injury or illness diagnosed by a physician or other licensed health professional, even if neither of the above are true
- For the purposes of days away from work, time spent in quarantine is not considered “days away from work.” This only holds for an employee with a separate work-related illness.
- A case may be recorded as COVID-19 related if any of the criteria above are met and:
  - Evidence of a positive test result for SARS-CoV-2, or
  - No testing available, however, accident investigation concludes the injury is work-related
- In cases such as death or any duration of in-patient hospitalization: You should report it to OSHA immediately, and through the investigation procedures in the next section, determine if the claim was in fact work-related. All employers are required to report to their local Federal OSHA or State OSHA agency (if present) of any serious injury or illness to any employees occurring in the workplace. In this case, COVID-19 would be a serious illness due to the realistic possibility of death. Each employer is required to report the incident within 24 hours of the incident taking place, or within 8 hours of knowledge by the employer.

Conclusion

Berkshire Hathaway commends all of their customers for promptly responding to any COVID-19 related claims. Keep in mind, COVID-19 regulations and guidance are a dynamic evolving issue; make sure you research the CDC and/or OSHA websites for the most current information. If in doubt with any of these guidance procedures, or if you require any additional help, please contact your Loss Control Specialist or e-mail us at losscontrol@bhhc.com. Thank you and stay healthy.