California Executive Order Presumes Employees Who Contract COVID-19 Are Eligible for Workers’ Compensation Benefits

By Brooke B. Tabshouri

On May 6, 2020, Governor Gavin Newsom issued Executive Order No. N-62-20. The order states that employees will be presumed to have contracted COVID-19 in the course and scope of employment for purposes of workers’ compensation benefits if all of the following conditions are satisfied:

  • The employee contracts it within 14 days of performing labor at the employer’s direction and at the employer’s worksite;
  • If such work occurred on or after March 19, 2020;
  • The worksite was not the employee’s home; and
  • The positive test is confirmed by a physician within 30 days.

This presumption is rebuttable and may be controverted by other evidence. However, if an employer fails to prove otherwise, the Workers’ Compensation Appeals Board is bound to find in accordance with the presumption and award benefits, which may include hospital, surgical, or other medical treatment, temporary and permanent disability payments, and death benefits. If a benefits claim for COVID-19 illness is not rejected within 30 days after the date of the claim, the illness will also be presumed compensable, unless rebutted by evidence discovered by the employer after that 30-day period that the employee did not contract COVID-19 in the workplace.

All employees must be certified for temporary disability payments by a physician licensed in California within 15 days of the diagnosis; this certifying physician can be a designated workers’ compensation physician in an applicable Medical Provider Network, Health Care Organization, a predesignated physician, or a physician in the employee’s group health plan. If the employee does not have a designated workers’ compensation physician or group health plan, the employee can be certified by a licensed physician of the employee’s choosing. Employees who were diagnosed with COVID-19 prior to the date of the Order must obtain a certification within 15 days of the Order.

The Order applies to all workers’ compensation insurance carriers that provide coverage in California, self-insured employers, and public employers. The Order permits insurance carriers to adjust the costs of their policies as appropriate.

Where employees have paid sick leave benefits that are specifically available in response to COVID-19, those employees are required to exhaust those benefits first before any temporary disability benefits are payable through workers’ compensation coverage. Those special federal and state paid sick leave benefits have been covered in Duane Morris Legal Alerts here, here, and here.

What this means for employer: Employers should take all steps necessary to limit transmission of COVID-19 in the workplace. Recommended steps include complying with all state and local health orders, encouraging or requiring employees to work remotely whenever possible, regular sanitizing of common employee areas, practicing social distancing, providing personal protective equipment, temperature-testing all people entering the workplace, asking employees to regularly certify whether they have symptoms of COVID-19, and requiring employees to stay home if they are experiencing any illness.