California Employees Presumed to Have Contracted COVID-19 at Work When Seeking Workers’ Compensation Benefits

Seyfarth Synopsis:  On May 6, 2020 California Governor Newsom issued Executive Order N-62-20, creating a rebuttable presumption that any employee in California who went to work between March 19, 2020 and July 5, 2020, and then tests positive for COVID-19 within 14 days of working, contracted the disease at work and is entitled to workers’ compensation benefits.  This presumption is not applicable to teleworking employees. 

On May 6, 2020 California Governor Gavin Newsom issued Executive Order N-62-20, creating a presumption that any employee in California who went into the workplace between March 19, 2020 and July 5, 2020, and then tests positive for COVID-19 within 14 days of reporting to work, contracted the disease at work and is entitled to workers’ compensation benefits.  In order to qualify, the following criteria must be met:

1. The employee must test positive for COVID-19 within 14 days of their last day working at their place of employment;
2. The last working day must be on or after March 19, 2020;
3. The employee physically reported to work, rather than working at home; and
4. The diagnosis must be made by a licensed physician.

If the employee meets each of these criteria, then the insurer and the Workers’ Compensation Appeals Board must presume that the employee contracted the virus at work and is entitled to full workers’ compensation benefits.  The presumption, however, is rebuttable.  The workers’ compensation carrier can seek to offer evidence that the employee contracted the virus elsewhere. 

Normally, an insurer has 90 days to investigate a claimed injury, following by either accepting or denying the claim.  This order reduces the time to investigate the claim from 90 to 30 days, further challenging overcoming the presumption.

The order also indicates that where an employee has paid sick leave benefits “specifically available in response to COVID-19,” those benefits must be exhausted before temporary disability benefits are payable.  This ensures that the employee receives as much full sick time pay as possible before they receive temporary disability, which is generally two thirds of their salary.  The employee then must be certified for temporary disability every 15 days by their doctor.

The order sunsets on July 5, 2020.