For all COVID-19 cases occurring from 07/05/20 through 01/01/23, there are many commonalities between Labor Code Sections 3212.87 & 3212.88.
- How?: Employee tests positive for COVID-19
- Test must be a PCR test or FDA approved emergency use viral test (does not include antibody testing)
- Presumption Qualifiers:
- Tested positive within 14 days of last day worked
- Presumption is disputable and may be controverted by other evidence
- Date of Injury = Last day worked
- Temporary Disability: Begins after employee has exhausted any COVID-19 specific leave benefits available. Waiting period does not apply.
LC 3212.87 Specific Nuances:
- Who?: Firefighting personnel, certain Peace Officers, Nurses & Physicians providing direct patient care, Custodians that have direct contact with COVID-19 patients in a health care facility, in-home service providers
- Peace Officers: Penal Code Sections: 830.1, 830.2(a),(b),(e),(f),(h), 830.3(a), 830.37(a),(b), 830.5(a),(b), 830.53(a)
- Please be sure to check what Penal Code Sections the employee is sworn under. For example, Correctional Officers that are sworn under PC 830.55 are not included within this Section.
LC 3212.88 Specific Nuances:
- Who?: All other employees not covered under 3212.87
- Additional Presumption Qualifiers:
- Tested positive occurred during an outbreak
- Outbreak present within 14 days at a specific place of employment
- Less than 100 employees, 4 employees tested positive for COVID-19
- More than 100 employees, 4% of employees tested positive for COVID-19
- Location ordered to close by a local or state public health department, OSHA or a school superintendent due to a risk of infection with COVID-19
- Evidence relevant to controverting the presumption may include, but not limited to:
- Evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment
- Evidence of an employee’s non-occupational risks of COVID-19 infection
Please don’t forget to report all positive COVID-19 claims! All industrially related claims for employees that have tested positive are one occurrence under the FY 19/20 MOC, and are reportable to excess under the provision of multiple employees injured as a result of one event (e.g. one pandemic outbreak) and/or death as a result of COVID-19, regardless of the total incurred or the member’s individual SIR.
WC: COVID-19 Claims Handling Tidbits
With all claims, including presumptive claims, you still have a duty to gather information relating to the facts of the injury. This may include asking the following questions at the onset of the claim:
- Do you have any known exposures?
- Have you had direct contact with anyone who has tested positive for COVID-19?
- When was your last day worked?
- What dates did you work in the 14 days preceding your last day worked?
- Do you have any symptoms?
- If yes, date of onset?
- Have you obtained a COVID-19 test?
- If yes, When? Where? Results?
- When working, are you wearing proper PPE and practicing social distancing as directed by your employer?
- When not working, what are your activities? Do you wear PPE (e.g. face covering) and practice social distancing during your personal time?
- Was there an outbreak present?
Once you have gathered the standard initial investigation piece (aka 3-point contact), you can then make a claim determination.
- Does this claim meet the presumption qualifiers outlined within the Labor Code Sections?
- Remember a presumption shifts the burden of proof to the employer to disprove the industrial causation based on the parameters laid out in the COVID-19 specific Labor Code Sections
- If the claim does not meet the presumption qualifiers, it may still be industrial if the facts support the decision.
- A non-presumptive claim puts the burden of proof on the employee to prove the industrial causation
WC: COVID-19 Claim Coding
Don’t forget about proper cause/body part/nature coding. Here are the recommended and required coding from the DIR/WCIS for the various types of COVID-19 claims that may be filed.
For claims where an employee was exposed to or tested positive for the COVID-19 virus:
- Cause: Code 83: Pandemic
- Nature: Code 83: COVID-19
- Body Part: Code 60: Lungs
For claims where an employee has alleged mental stress specific to COVID-19 pandemic:
- Cause: Code 83: Pandemic
- Nature: Code 77: Mental Stress
- Body Part: Code 66: No Physical Injury
For claims where an employee alleged a reaction to the COVID-19 vaccine:
- Cause: Code 83: Pandemic
- Nature: Code TBD: Use the code that most appropriately applies to the injury claimed
- If no other code applies, use code 59: All Other Specific Injuries
- Body Part: Code 91: Body Systems and Multiple Body Systems
- Note: Reactions to vaccines must also include “COVID-19 vaccine reaction” in the Accident Description/Cause text field for EDI reporting (DN 38 of the FROI/SROI reporting.
How are you tracking claims that are positive for COVID-19 and those that are negative for COVID-19? We recommend that you have a specific data point in your claim system where this can be populated for ease of tracking, reporting and identifying positive WC claims. This includes reporting to the local public health department, OSHA, employees, exclusive representatives, and to PRISM for excess reporting and the monthly/annual loss reporting. There is often confusion between positive WC COVID-19 claims and COVID-19 cases as defined by AB 685 and OSHA’s Emergency Temporary Standards, so having clear and distinct data is crucial. Similarly, are you tracking whether the claim falls within the presumption?