California Governor Gavin Newsom just issued Executive Order N-62-20. Read it here. This one affects workers’ compensation benefits for certain workers who contract COVID-19. 

The Order provides that workers’ compensation benefits are available to employees who become ill from Coronavirus under certain circumstances.  

These circumstances include:

  • The employee either tests positive for Coronavirus, or is diagnosed (by a licensed physician / surgeon) as having COVID-19 within 14 days of the last time the employee performed services *at the workplace* under the employer’s direction;
  • The services were performed on or after March 19, 2020;
  • The employee was not working from home when performing the services;
  • A diagnosis is confirmed by testing within 30 days of the original diagnosis.

Presumption of Workplace Injury

Of course, workers’ compensation benefits generally are available for injuries and illnesses that arise out of or occur in the course of employment.  So, what’s new?

Well this Order reverses the burden of proof in workers’ compensation cases involving COVID-19 illnesses.  For workers’ compensation claims that satisfy the above criteria, the presumption is that the illness occurred in the course of employment / scope of employment. This presumption, however, expires 60 days after May 6. While the presumption is applicable, the employer will have the burden of proving the employee contracted the virus outside of work.

How the employer is supposed to do that is a mystery. Perhaps with expanded “tracing” it will be possible.  But tracing faces significant obstacles for employers including methods and privacy.  It is challenging enough to perform surveillance on an employee claiming a workers’ compensation injury that cannot be easily detected, or that the insurer / employer believes has been “embellished.”  Will insurers use COVID detectives to determine if there is evidence infection occurred outside of work, or just accept claims?  If the latter, count on workers’ compensation rates to go up.  The Order states it does not affect insurers’ right to seek rate increases. 

Default Coverage

If the insurer does not reject a benefits claim related to COVID within 30 days of the claims’ filing date, it is presumed covered by the insurer, unless evidence arises after the 30-day period.

Temporary Disability Benefits 

Paid sick leave must be used before Workers’ Comp. temporary disability benefits can start.  The Order provides there is no waiting period for TD benefits. 

To obtain TD benefits, the employee must have been timely certified and re-certified by a physician / surgeon.  The Order contains details about this provision.

Other

Contrary to popular belief, there is no “workers’ compensation leave” over and above other leave programs (such as FMLA). But coverage of COVID-19 illnesses will expand workers’ legal protections.  Once covered by the Workers’ Compensation Act, workers are protected from discrimination / retaliation under Labor Code section 132a. That may mean employees who filed for workers’ compensation benefits related to COVID-19 illness will file section 132a claims when employers take any negative action against them. That will complicate personnel decisions.  

AB 5 – remember when that was all you had to worry about? – Independent contractors may challenge their classification and seek workers’ compensation benefits for COVID-19 if they otherwise meet the criteria above. 

In addition may employees file “serious and willful” claims when COVID-19 outbreaks repeatedly occur at the workplace?  Those claims involve increased benefits.  

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