On May 6, 2020, Governor Newsom signed Executive Order N-62-20, which creates a presumption for workers’ compensation benefits for employees who contract COVID-19. While as many as eight other states have recently established rebuttable presumptions that certain workers with COVID-19 have valid workers’ compensation claims unless the employer can prove the employee contracted the virus outside of work, this is the broadest presumption ever enacted in California’s workers’ compensation system and it covers employees regardless of the type of work they perform.
Under the existing California workers’ compensation system, employees need to present some medical evidence that their illness or injury was related to work in order to qualify for benefits. To meet that important threshold, they need to establish some reasonable factual basis for asserting that the workplace caused their illness or injury.
However, the executive order turns that analysis on its head. Instead, if any “covered worker” contracts COVID-19, it would be automatically “presumed” to be work-related without the employee having to provide any further proof.
The following summarizes the criteria that must be met for an employee to qualify for the presumption:
- If an employee working at a physical place of work (not working from home) is diagnosed with COVID-19 within 14 days of being at work, this condition is presumptively considered to be industrial in nature.
- The diagnosis must be made by a physician who holds an active physician and surgeon license from the California Medical Board and the diagnosis must be confirmed by further testing within 30 days of the diagnosis.
- This order pertains to any employee who was at a physical place of work anytime between March 19, 2020 and July 5, 2020.
This order creates an additional change to the current workers’ compensation system. One of the noteworthy changes is that the claims administrator has 30 days to deny the claim or it is presumed compensable. The claim may later be denied if evidence is discovered that was not available during the initial 30-day period. It is worth noting that discovery, including retrieval of medical records, often takes longer than 30 days.
The order also states that any paid sick leave benefits afforded as a result of COVID-19 (such as the Families First Coronavirus Response Act) shall be exhausted before temporary disability or Labor Code 4850 benefits shall be paid.
Although this presumption is rebuttable—meaning you can controvert this position with other evidence—presumptions are very difficult to rebut, and it is likely to be a high burden for employers to meet. Since COVID-19 is such a new condition, there is no clearly defined standard as to what evidence is necessary to rebut this presumption.