Employees who are required to work outside of their homes during the State’s shelter-in-place order may now have an easier time obtaining Workers’ Compensation benefits if they contract COVID-19. Yesterday, Governor Gavin Newsom issued an executive order temporarily establishing a rebuttable presumption for employees who become infected with COVID-19. The presumption applies to all workers who were directed by their employers to work outside of their homes starting March 19, 2020 and continuing for 60 days following the May 6, 2020 order.
Existing case law requires employees to either prove they contracted the illness at work or establish that their work put them at a materially greater risk of contracting the illness than the general public. A rebuttable presumption shifts the burden to the employer or the insurance carrier to demonstrate that an employee contracted COVID-19 outside of their employment. Without this new presumption, many employees could find it difficult to establish exactly when and where they contracted the disease.
Under the executive order, any COVID-19-related illness shall be presumed to arise out of and in the course of employment for purposes of awarding workers’ compensation benefits subject to the following requirements:
- The employee must have been directed to work outside the home between March 19, 2020 and July 5, 2020.
- Within 14 days of working outside the home during the relevant period, the employee must have a positive test or diagnosis from a properly credentialed physician that is confirmed with a positive test within 30 days of the diagnosis.
- Temporary disability or 4850 time off must be certified more frequently than normal - a properly credentialed doctor must certify time off every 15 days during the first 45 days or within 15 days of the May 6, 2020 order.
- Presumption is rebuttable.
- Claim decision deadline is reduced from 90 days to 30 days.
- Workers are eligible for all standard workers’ compensation benefits but any special COVID-19 benefits (e.g., Federal Sick Leave) must be used and exhausted before temporary disability/4850 will be payable.
- Employees who are not covered by the presumption (i.e., tested positive before March 19, 2020 or contract the illness after July 5, 2020) can still rightfully make a claim for workers’ compensation benefits if the facts support the claim, but they will maintain the burden of proof set forth under the current statutory system.