Executive Order Establishes Rebuttable Presumption Regarding COVID-19 For Workers’ Compensation Claims
As stay-at-home orders expire and California gradually begins to reopen for business, employers should be aware that, in the near term, the Workers’ Compensation Appeals Board will presume that an employee that tests positive for or is diagnosed with COVID-19 within 14 days after they perform work at their place of employment contracted the virus in the course of employment and, thus, is eligible for the full panoply of California Workers’ Compensation benefits.
On May 6, 2020, Governor Newsom signed Executive Order N-62-20, which establishes a rebuttable presumption, for purposes of awarding Workers’ Compensation benefits, that any COVID-19-related illness arose out of and in the course of employment if the date of injury is on or before July 5, 2020, and all four of the following conditions are met:
- The employee tests positive for or is diagnosed with COVID-19 within 14 days after they perform labor or services at their place of employment at the employer’s direction;
- The labor or services are performed on or after March 19, 2020;
- The place of employment is not the employee’s home or residence; and
- If an employee is diagnosed with COVID-19 (as opposed to testing positive), the diagnosis is issued by a physician that holds a physician and surgeon license from the California Medical Board, and the diagnosis is confirmed within 30 days by further testing.
An employee whose claim for a COVID-19-related illness is accepted is eligible for all Workers’ Compensation benefits, including hospital, surgical, medical treatment, disability indemnity, and death benefits. However, if an employee is eligible for COVID-19-specific sick leave (such as the leave available under the Federal Families First Coronavirus Response Act (FFRCA) or local ordinances like those enacted by San Francisco and Los Angeles, among others), such benefits must be exhausted before any temporary disability benefits become due and payable.
The Executive Order provides that the presumption may be controverted by “other evidence,” but at present, no guidance has issued as to what evidence an employer could produce to controvert or rebut the presumption. Further, if a claim for a COVID-19-related illness is not rejected within 30 days after it is filed, the illness will be presumed compensable, unless rebutted by evidence that is discovered after the 30-day period.
Since the presumption is currently in place until July 5, 2020, employers may want to consider the impact of this Executive Order on the timing and extent of efforts to reopen workplaces.
Also, as with more typical workplace injuries, employers should require employees to report COVID-19 related illnesses immediately and comply with the employer’s Workers’ Compensation claims processes. Employers should also be careful to provide employees all accrued sick leave benefits, including benefits under the FFRCA, and should strictly prohibit any retaliation against an employee for exercising his or her rights to Workers’ Compensation or sick leave benefits.