The 12 Days of California Labor & Employment - Day 3 "COVID Presumption Extended"

In the spirit of the season, we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On this third day of the holidays, my labor and employment attorney gave to me: three French hens and AB 1751.

Last year, we advised that SB 1159 was enacted on September 17, 2020, creating a rebuttable presumption in certain instances when an employee contracts COVID-19. This was set to sunset as of January 1, 2023. However, this has now been extended, and the COVID-19 presumption remains in effect until January 1, 2024.  

Employers saw COVID-19 restrictions decrease during the second half of the year. However, COVID-19 issues remain. Employers must remember that the presumption applies to all employers with five (5) or more employees. The rebuttable presumption exists when an employee tests positive for COVID-19 within 14 days of performing work at the place of employment at the employer's direction; and performed this work during the time the presumption is in place (through January 1, 2024); and tested positive during a period of an outbreak at the employee's specific place of employment. 

In order to qualify for the presumption, an employee must have worked at the direction of an employer on-site at the employer's premises. It does not cover an employee working from home. There is also the requirement that the positive test occurred during an outbreak. What constitutes an outbreak? If one of the following events exists within 14 days:

• If the employer has 100 or less employees, and there are at least four employees who test positive for COVID-19; or
• If the employer has more than 100 employees at a specific place of employment, four percent of the workforce at that specific location test positive for COVID-19; or
• If a specific place of employment is ordered closed due to COVID-19.

Employers may recall that a specific place of employment is defined as "the building, store, facility, or agricultural field where an employee performs work at the employer's direction." As such, employers should still keep track of where their employees are located if they are in different areas. This means employers must also monitor when an employee travels between different facilities if the employer has multiple locations.

AB 1751 also added that the provisions applicable to firefighters and police officers now also include active firefighting members of a fire department at the State Department of State Hospitals, the State Department of Developmental Services, the Military Department, and the Department of Veterans Affairs and to officers of a state hospital under the jurisdiction of the State Department of State Hospitals and the State Department of Developmental Services.

Moving forward, the time to deny a COVID-19 claim and rebut the presumption will remain 30 or 45 days, essential workers and all others, respectively, through January 1, 2024. An employer can only utilize evidence discovered subsequent to the applicable investigation period; therefore it remains of the utmost importance to perform an immediate investigation. In addition, employers are encouraged to keep detailed records, investigate any COVID-19 illness, and take other actions that can prevent the spread of COVID-19.