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EMPLOYEES WHO CONTRACT COVID-19 ARE NOW PRESUMED COVERED BY WORKERS’ COMPENSATION


California employers should anticipate added workers’ compensation costs due to the COVID-19 pandemic. On May 6, 2020, Governor Newsom signed Executive Order N-62-20 to give workers infected with the virus a “rebuttable presumption” that they contracted the virus while at work, if they work outside of their home. This is one of Governor Newsom’s many executive orders which have taken effect since the state of emergency was declared on March 4, 2020.

1. The Effect Of The New Presumption

The Order shifts the burden of proving that an employee’s claim is related to his or her job from claimants to employers. In a typical workers’ compensation claim, employees would have the burden of proving that they became ill at their job location. However, under the Order, companies now have the burden. The presumption was meant to streamline workers’ compensation cases, since employees may find it difficult to prove they became sick at work.

An employee is only entitled to the presumption if he or she can meet the following requirements:

• The employee tested positive for, or was diagnosed with, COVID-19 within 14 days of his or her last day of work. (The employee must be “diagnosed” by a physician who has a physician and surgeon license issued by the California Medical Board and the diagnosis must be confirmed with further testing within 30 days after the date of diagnosis.)

• The employee’s last day of work must be on or after March 19, 2020.

• The employee’s last day of work did not take place in the employee’s home or residence (i.e., the employee was not working from home).

For now, this presumption applies to employees who become ill before July 5, 2020.

2. Rebutting The Presumption

Employers can dispute this presumption to show that the employee contracted COVID-19 outside of work. However, if employers do not dispute the employee’s presumption, the Workers’ Compensation Appeals Board must find that the employee contracted the virus at work. If the claim is covered by workers’ compensation, employees would be eligible for all the benefits workers’ compensation law provides, including medical treatments, hospital costs and disability payments under Labor Code Section 4664. Employees may be entitled to temporary disability benefits (or a leave of absence under Labor Code Section 4850) depending on when they became sick:

• If they meet the test for a rebuttable presumption above before May 6, 2020: They must obtain a certification noting that the employee was temporarily disabled. They must be recertified every 15 days for the first 45 days after diagnosis.

• If they meet the test for a rebuttable presumption above on or after May 6, 2020: They must be certified for benefits within 15 days after the diagnosis and recertified every 15 days for the first 45 days after diagnosis.

Employees must exhaust any sick leave benefits before they are entitled to disability benefits.

3. Precautions Are Warranted

While the Order may be challenged, employers should take appropriate precautions to decrease their liability and stop any potential COVID-19 spread:

• Contact insurance brokers to determine if they have any additional requirements or costs in light of the Order – insurance carriers are permitted to adjust the cost of their policies accordingly.

• While protocols for submitting workers’ compensation claims can remain in place and employers should not retaliate against employees who file such claims, employers should require employees to immediately report if they have COVID-19.

• If a case of COVID-19 is reported amongst the workforce, take relevant and necessary precautions, including cleaning and alerting other members of the workforce to prevent the spread.

• Provide employees with paid sick leave as necessary and extended FMLA leave; communicate with insurance carriers regarding an employee’s use of paid sick leave.

• Employers may want to limit the amount of employees they ask back to work, particularly before July 5, 2020.

• Finally, adhere to any industry-specific and other reopening guidelines to reduce any potential spread. These are available at https://covid19.ca.gov/industry-guidance/.

Employers can find more information on the effects of COVID-19 on their businesses in Castle’s most new publication, the Employer’s Guide To COVID-19 And Emerging Workplace Issues by Attorneys Richard J. Simmons, Brian D. Murphy and Adam R. Rosenthal.

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