On September 17, 2020, California Governor Gavin Newsom signed into law SB 1159, which creates a presumption that an employee's COVID-19 illness or death arose out of and in the course and scope of employment. An employer can rebut this presumption by demonstrating that it has implemented measures to reduce COVID-19 transmission in the workplace and that the employee's risk of infection incurred outside the workplace. The employer's rebuttal can include employee statements as well as any other evidence that would typically be considered in a workers' compensation dispute.

The presumption of compensability applies if there is a COVID-19 "outbreak" at a specific place of employment. An outbreak exists if, within a 14-day window, four employees test positive at a specific site of employment with 100 employees or fewer, or 4 percent of all employees test positive at a specific site of employment with more than 100 employees. 

To help determine whether an "outbreak" has occurred at a place of employment, California now requires an employer with five or more employees to make a report to its workers' compensation claims administrator, within three business days, when it "knows or reasonably should know that an employee has tested positive for COVID-19." Retroactively, for cases that occurred between July 6, 2020 and the present, employers must notify their claims administrator of past positive cases by no later than October 17. 

When making these reports, employers must provide: 

• the date the employee tested positive (the date the employee was tested for COVID-19);

• the address (or addresses) of the employee's place of employment during the 14-day period preceding the positive test; and

• the largest number of employees who reported to work in the 45-day period preceding the last day the employee worked at the place of employment. 

Importantly, employers should not provide any employee's personally identifiable information.

The law imposes a statutory penalty of $10,000 for an employer that "intentionally submits false or misleading information or fails to submit information." California employers should reach out to their workers' compensation claims administrators for more detailed information regarding how to make these reports.