By Diana Tsudik

Law360 (May 11, 2021, 12:23 PM EDT )

Diana Tsudik

An interesting question has recently emerged for California employers about whether a second workers' compensation claim form is due if an applicant tests positive for COVID-19 after returning from an industrial COVID-19 leave. This article will explain why a second form likely isn't needed. 

As a refresher, the duty to provide a claim form arises from Labor Code Section 5401(a),[1] which requires employers to provide a claim form within "one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee's work shift at the time of injury or which results in medical treatment beyond first aid."

Labor Code Section 5400 also requires an employee to serve an employer with notice of an injury in writing, but Labor Code Section 5402 states that "knowledge of an injury, obtained from any source on the part of an employer ... or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400."

That said, Labor Code Section 5402(b) clarifies that an injury is presumed to be compensable if "liability is not rejected within 90 days after the claim form is filed under Section 5401."[2] So, within 90 days of receiving the claim form, the claim must be denied or there are serious legal penalties for the employer.

But what happens then when the applicant received a claim form in connection with the initial positive test, has returned to work, and then tests positive a second time? Is a second claim form really due? It's unlikely, but several questions should be clarified before a determination can be made:

• How long does someone test positive for COVID-19 after recovering from the virus? 
• How long do the antibodies protect from reinfection?
• What's the likelihood of reinfection?

According to the Centers for Disease Control and Prevention: 

If you have recovered from your symptoms after testing positive for COVID-19, you may continue to test positive for three months or more without being contagious to others. For this reason, you should be tested only if you develop new symptoms of possible COVID-19. Getting tested again should be discussed with your healthcare provider, especially if you have been in close contact with another person who has tested positive for COVID-19 in the last 14 days.[3]

Based on the above, if someone tests positive a couple of weeks or even months later, we can safely presume it's the original infection, not a reinfection then. It seems a more accurate predictor would be a positive antibody test, not a second COVID-19 test — and while immunity length remains under investigation, the risk of reinfection seems unlikely, especially during the initial 90 days after symptom onset from the preceding infection.

We know that for adults recovering from COVID-19, a positive result without new symptoms during the 90 days after illness more likely represents persistent shedding of viral RNA rather than reinfection. This is why retesting for asymptomatic adults within 90 days of illness isn't likely to yield useful information, per the CDC.[4]

As for antibodies, it remains unclear how long the antibodies can remain in the system. A study that followed health care workers in the U.K. for six months, for example, found that those who had an initial COVID-19 infection carried protective antibodies for the length of the study period; the few who tested positive again generally had no symptoms.[5] Other studies suggest immunity for up to eight months after infection — and even when antibodies wane, research suggests that some protections remain.[6]

Legitimate reinfections appear to be quite rare and should not be confused with long-haul symptoms that plague a certain population of those with COVID-19. One study, published on April 23, finds that only 0.4% of patients who previously tested positive for COVID-19 were possibly reinfected.[7]

It's important, therefore, to define what qualifies as reinfection. People with COVID-19 may continue to test positive for several months without being sick or infectious. Reinfection is confirmed when testing shows each virus's genetic makeup is different to a degree that cannot be explained through in vivo evolution. But the likelihood is rare according to the CDC and studies are ongoing to determine specifically how soon reinfection can occur, which is affected, of course, by how long antibodies remain present in the system.[8]

As reinfection is very unlikely, it's fair to assume that a second positive test relates to the original infection and is not a new and separate injury; meaning that the second positive test doesn't qualify as notice or knowledge of an injury under Labor Code Sections 5400 or 5402 under these facts because it's part of the original claim. 

An employer who nonetheless provides a second claim form in such a case risks unnecessary exposure to double liability for one separate injury; this includes the obligation to provide reasonable treatment — up to $10,000 — until the date liability for the claim is accepted or rejected,[9] and this creates a dangerous precedent. Imagine if every returning employee's repeated positive test yields a claim form; employers would easily multiply the number of claims they need to defend unnecessarily.

On the other hand, the obligation to provide a claim form could arise if the period between the tests is significant. Could this change if the original infection is nine months old? Or perhaps a year old or more? Possibly.

Consideration for employees' vaccinations or lack thereof may play a role as well, as will pending research concerning different strains of the virus. But for now, and based on what we know thus far, it seems unlikely that the second reinfection requiring a new claim form is warranted.

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Diana Tsudik is a partner at Gilson Daub LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Labor Code Section 5401(a),[7]: 
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5401.&lawCode=LAB.

[2] Shortened to 30 days under Lab. Code 3212.86 and 45 days under Lab. Code 3212.88.

[3] https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/isolation.html#:~:text=If%20you%20have%20recovered%20from,possible%20COVID%2D19.

[4] https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isolation.html.

[5] https://www.medrxiv.org/content/10.1101/2020.11.18.20234369v1.full.

[6] https://science.sciencemag.org/content/371/6529/eabf4063.

[7] https://ehrn.org/articles/covid-19-testing-and-possible-reinfections.

[8] https://www.cdc.gov/coronavirus/2019-ncov/your-health/reinfection.html and https://www.cdc.gov/coronavirus/2019-ncov/php/invest-criteria.html.

[9] Labor Code § 5402(c): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5402.&lawCode=LAB.

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