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Expanded CA Workers’ Comp Benefits / COVID-19

Governor Gavin Newsom Issues Emergency Exec. Order Expanding Workers’ Compensation Benefits For COVID-19

On 5/6/20, California’s governor, Gavin Newsom, signed emergency Executive Order N-62-20 expanding the protections for essential workers that contract COVID-19 during the stay at home order.[1] Ford & Wallach applauds Governor Newsom for protecting workers and expediting California Workers’ Compensation benefits to workers during this unprecedented pandemic health crisis.

The executive order creates a rebuttable presumption that the COVID-19 infection is industrial if an essential worker: (1) tested positive for COVID-19 or was diagnosed with COVID-19; and (2) the COVID-19 is confirmed by a positive test within 14 days of performing a labor or service at a place of work after the stay at home order was issued on 3/19/20. If the Workers’ Compensation insurance carrier has no affirmative evidence proving the COVID-19 was obtained outside of the employment e.g., at home, the Workers’ Compensation insurance carrier must admit the worker’s claim for COVID-19 as being industrial.

The executive order is retroactive from the governor’s first shelter-in-place order on 3/19/20 and remains in effect for 60 days from 5/6/20 until 7/5/20. Nothing prevents Governor Newsom from extending the executive order should circumstances require an extension of the executive order.

The executive order significantly streamlines the Workers’ Compensation system and makes it easier for workers infected with COVID-19 to prove their COVID-19 injury or illness is work related. The Workers’ Compensation insurance carrier is required to investigate the WC claim for COVID-19 within 30 days, rather than the standard 90-day investigation period that applies to non-COVID-19 Workers’ Compensation claims. This means that within 30 days, the Workers’ Compensation insurance carrier must admit or deny the claim for WC benefits for COVID-19. Due to the rebuttable presumption, it is expected that most essential workers will have a finding of industrial COVID-19 infection. Prior to the rebuttable presumption, the burden was on the injured worker to affirmatively prove that the worker developed COVID-19 due to the worker being at a materially greater risk of COVID-19 than the general public. The rebuttable presumption allows workers to legally presume the COVID-19 infection is work related even if it might otherwise be difficult to say exactly where and when the worker contracted COVID-19.

Under the executive order, the waiting time period for the start of temporary disability (“TD”) is eliminated. Where an employee is off work, and the employee has no sick leave benefits, the TD payments will begin being paid by the WC insurance carrier upon certification by a physician holding a physician and surgeon license issued by the California Medical Board for temporary disability from the first date of disability due to COVID-19.

The executive order covers a wide range of frontline workers performing essential jobs during the coronavirus health crisis[2]. This clearly includes essential employees working outside of their homes during the stay at home order at the employer’s direction. Non-essential workers would also be covered by the executive order if they were performing “labor or services at the employee’s place of employment at the employer’s direction”. The EO’s presumption of industrial COVID-19 infection would not cover an employee working at their place of employment without direction e.g., without authorization, of their employer. Even employees not covered by the EO may have a Workers’ Compensation claim for COVID-19 infection depending on the facts of their injury or illness. Essential and non-essential employees retain the right to all WC benefits including but not limited to medical care, temporary disability for time lost from work due to your injury or illness, permanent disability, and death benefits.

The law is constantly changing and everyone’s injury or illness is unique. We expect the law to more fully develop around COVID-19 injuries and illnesses. It is our position that a worker that contracts COVID-19 is rightfully entitled to WC benefits for the other medical consequences that may develop due to the COVID-19 such as emotional distress, weakened immune systems, need for ongoing monitoring of pulmonary conditions etc. We are proud to help workers obtain all of the Workers’ Compensation benefits they are owed due to performing work during a dangerous health crisis.

[1] For the complete text of Executive Order N-62-20 see https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.

[2] For a list of the classification of “Essential Critical Infrastructure Workers” designated by Governor Newsom see https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf.


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