May 14, 2020
California just made it easier for employees to receive workers’ compensation coverage for coronavirus (COVID-19). On May 6, 2020, Governor Newsom signed Executive Order N-62-20, under which certain employees who develop a COVID-19 related illness are presumed to have contracted it in the course of their employment, making the illness covered by the employer’s workers’ compensation policy . The presumption is temporary, only applying to dates of injury occurring through 60 days following the date of the Executive Order – though July 5, 2020.
The Executive Order was signed in recognition of the fact that employees who report to their places of employment are often exposed to an increased risk of contracting COVID-19 (which may require medical treatment, including hospitalization), and that employees who report to work while sick increase health and safety risks for themselves, their fellow employees, and others with whom they come into contact. Prompt and efficient treatment will be realized by facilitating access to California’s workers’ compensation system for medical treatment and disability benefits, and the provision of workers’ compensation benefits related to COVID-19 will hopefully reduce the spread of COVID-19 and otherwise mitigate the effects of COVID-19 among all Californians, thereby promoting public health and safety.
The presumption that a COVID-19 related illness is work-related will apply if the following requirements are satisfied: (a) The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction; (b) The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020; (c) The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and (d) Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
Normally, employees have the burden of proving their injury was work-related, that is, that it arose out of or in the course and scope of employment, but this Executive Order switches the burden so that (in the specified circumstances) it is the employer who has to prove the COVID-19 related illness was not work-related. This might be difficult for employers to prove, due to the prevalence of asymptomatic carriers and length of the incubation period. (Without the presumption, however, it would likely be difficult for employees to prove they contracted COVID-19 on the job, for the same reasons, and most workers’ compensation administrators would automatically deny these claims, delaying medical treatment and benefits.) While rebutting the presumption might be difficult for employers, it will be easier if they can show they are complying with all safety regulations and recommendations from the CDC, Cal-OSHA, and other state and local authorities.
The Executive Order also shortens the length of time insurance companies have to reject a COVID-19 workers’ compensation claim, from 90 days to 30 days. If the insurance company does not reject the claim within this time, the illness is presumed compensable, and can only be rebutted with evidence discovered after that 30-day period.
While employees with accepted COVID-19 workers’ compensation claims will be entitled to disability benefits, any other COVID-19 paid sick leave provided pursuant to local law or the Families First Coronavirus Response Act (FFCRA) must be used and exhausted first before the workers’ compensation temporary disability benefits become due and payable. Employers must therefore determine employees’ FFCRA eligibility (or other paid sick leave eligibility) and tell the insurance carrier, to avoid duplicate payments.
If you are an employee who believes you contracted COVID-19 at work, Eskridge Law can help.
If you are an employer worried about the effects of this new Executive Order, Eskridge Law is here to advise and assist you.
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ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (firstname.lastname@example.org). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.