ALERT: Executive Order Creates Presumption for Covid-19 Workers’ Compensation Claims

Posted in: Employment Law by Dowling Aaron on

On Wednesday, May 6, 2020, Governor Gavin Newsom signed Executive Order N-62-20, which will make it easier for employees who contract COVID-19 during a specific time period to obtain workers’ compensation benefits.

The Order establishes that employees working outside the home who test positive for COVID-19, are presumed, for purposes of workers’ compensation, to have contracted the disease in the course and scope of employment.  However, in order for the presumption to exist, all of the following are required:

1. The employee tested positive or was diagnosed with COVID-19 within 14 days of having worked:
a. at the employee’s “place of employment,”
b. at the employer’s direction;
2. The work was performed on or after March 19, 2020;
3. The work was not performed at the employee’s home or residence; and
4. If a COVID-19 diagnosis is used (rather than a positive test), the diagnosis must be done by a physician holding a California physician and surgeon license and must be confirmed by further testing within 30 days after the date of diagnosis.

The Order does not limit the presumption to “essential critical infrastructure” workers as defined in Governor Newsom’s Executive Order N-33-20.  This means that, as it is currently drafted, the presumption would apply to any California workers performing work outside the home, at their place of employment, at their employer’s direction, regardless of the industry.

The presumption is “disputable,” meaning that coverage is not automatic if the employer can show that any of items 1 through 4 above were not met.  The presumption also only currently applies to dates of injury up through 60 days after the date of the Order, which will be July 5, 2020.  This means that positive tests or diagnoses can be used up through July 19, 2020.

Worker’s comp carriers normally have 90 days to deny coverage after a claim form is filed.  However, that deadline is reduced to just 30 days for the COVID-19 presumption in this Executive Order.  It is still possible to challenge the presumption after the 30 days have passed, but only with evidence discovered after that 30-day period.

Claims established under this presumption are eligible for all workers’ comp benefits, including full hospital, surgical, medical treatment, disability indemnity, and death benefits.  If the employee has specific COVID-19-related paid sick leave available, that leave must be exhausted before the employee is entitled to temporary disability or salary continuation under workers’ comp.  However, in order to qualify for temporary disability, an employee must comply with strict 15-day timelines for being certified as disabled by a properly licensed physician.

On the positive side, the presumption requires a clear positive test or proper diagnosis and puts strict certification deadlines on employees in order to qualify for temporary disability benefits.  However, the 30-day timeline to dispute claims under the presumption is tight and will require employers to respond quickly with evidence to challenge claims under the presumption.

The legislature is currently drafting two proposed bills that would create workers’ compensation presumptions for front-line health workers responding to the COVID-19 crisis.  It is not clear at this time whether or how this Executive Order will influence the drafting of these bills.  You can read the proposed drafts here: (Assembly Bill 664) and here: (Senate Bill 1159).

COUNSEL TO MANAGEMENT:

Employers should continue to take all reasonable precautions to keep their workplaces and workforces free from COVID-19, follow local health and safety guidelines, and also make sure that they can clearly show where and when employees are authorized and directed to work during the pandemic.   Employers should also reach out to their workers’ compensation providers for any specific guidance they may have on responding to the flood of COVID-19 related claims that is undoubtedly coming. If you have questions about responding to COVID-19 claims from your employees, contact the experts at the Saqui Law Group, a division of Dowling Aaron Incorporated.

By: The Saqui Law Group

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