In September of 2020, Gov. Gavin Newsom signed into law SB 1159, which created various presumptions for COVID exposures. Some are for the initial outbreak, and some are for certain professions such as law enforcement and health care workers, among others.

Gregory Grinberg

But there’s another section having to do with outbreaks, defined as at least four employees (or 4% of the employees at a specific workplace, whichever is greater) testing positive within a 14-day period.

How is the employer supposed to rebut the presumption of industrial exposure in an outbreak case? Well, we have the tools at our disposal that existed before the outbreak: discovery such as depositions, social media investigation and investigator interviews.  But, despite the best efforts of Sacramento, the market tends to respond when there is a need.

A company called Estimote has possibly built a better mousetrap by creating collar tags that are worn by employees in the workplace. The collar tags are supposed to vibrate when two tags are within 6 feet of each other, and also provide contact tracing. So, if Jill at the office reports a positive COVID test, Jack in human resources can check her history for the last 14 days and show which other devices have been within 6 feet of her.

Is this a certainty? Of course not. Employees can still be exposed to COVID by customers or visiting vendors who probably won’t be wearing these devices. But the presumption is rebuttable, and perhaps this evidence will provide some basis to offer a denial.

While it’s possible that an employee is infected because of contact at work, neither the workers’ compensation system nor life in general operates on possibility; the standard is always probability. If an employer can effectively demonstrate that an applicant did not have contact within 6 feet of any other COVID-positive employees in the past 14 weeks, doesn’t that drastically reduce the likelihood that the exposure occurred at work?

Ultimately, employers will have to weigh the cost of obtaining, setting up, monitoring and, most importantly, enforcing, such a system against the likelihood of reduced workers’ compensation costs. 

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.