On May 6, 2020 Governor Newsom issued EO N-62-20 that created an immediate change to how claims of industrially contracted COVID-19 cases incurred by the state’s “essential workers” will be handled and reported. Employees are typically required to prove they were injured on the job to qualify for Workers’ Compensation Benefits, however, the order introduces a ‘rebuttable presumption’ (an assumption made by a court to be taken as true unless there is direct information to contest it and prove otherwise) that an employee that tests positive for COVID-19 contracted the virus at work if the following conditions are met:
- An employee tests positive or is diagnosed with COVID-19 within 14 days of performing labor or services at their place of employment at the employer’s direction;
- This labor or service was performed at the employee’s place of employment on or after March 19, 2020;
- The employee performed this labor or service outside of their home or residence; and
- A California Medical Board licensed physician and/or surgeon issued this diagnosis and the diagnosis was confirmed by further testing within 30 days of the date of the diagnosis.
The Governor stated that the order was put into place to help those employee’s that do not fall under the ‘shelter-in-place’ order that was issued on March 19, 2020 and this ruling will be retro-active to that date and was extended through July 5, 2020.
Other Key Takeaways
- The order has significantly decreased the period in which an employer has to deny a claim from the typical 90-days to 30-days. This 30-day clock begins on the date the claim form is filed
- Before any benefits in accordance with this order take effect, any and all other sick leave benefits pursuant to local laws or in relation to Families First Coronavirus Response Act (FFCRA) must be used and exhausted first
What this means for Employers
As an employer it is imperative that you are filing claims and addressing these issues as soon as they arise to allow for time to review the cases and accept or decline the claims. Employers that can establish that they are following all applicable local, state and federal health and safety guidelines are not only providing a safer environment for their teams, but may also create a firmer position to defend any rebuttals of presumption of compensability. This will also assist an employer that needs to defend themselves against an employee claim of serious and willful misconduct. A claim of serious and willful misconduct alleges that an employer is aware of a dangerous condition and has failed to take corrective action to reduce or eliminate the risk.
Protective measures should include but are not limited to:
- Employer provided or required masks or face coverings, and/or additional Personal Protective Equipment (PPE);
- Policies on maintaining social distancing;
- Limitations on the number of customers or employees in any area at any given time based on space and occupancy;
- Insertion of barriers to protect employees and customers alike;
- Delivery or contact-less pick-up;
- Temperature screenings; or
- Posted notice and policy on all measures being taken to protect employees and customers.
There are two ways an employer can Rebut the Presumption:
- Establish that the employee making the claim does not meet any one of the four criteria as listed above; or
- Provide ‘other evidence’ that would establish another cause for the COVID-19 illness. This would include investigations into facts and the outside of work activities of the employee to suggest that the positive reading was most likely attributed to a circumstance outside of the workplace
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