IMPORTANT: California: NEW Presumption of Employer Liability Under Workers’ Compensation

Gov. Newsom recently issued an Executive Order stating that employees are presumed to have contracted COVID-19 in the workplace for purposes of receiving workers’ compensation benefits if all of the following are met:

• The employee tested positive for or was diagnosed with COVID19 within 14 days after working at the employee’s place of employment at the employer’s direction;
• The work performed occurred between March 19, 2020 and July 5, 2020;
• The employee’s place of employment was not the employee’s home or residence; and
• If basing a claim on a diagnosis of COVID-19, the diagnosis must be done by a physician who holds a physician and surgeon license issued by the California Medical Board, and the diagnosis must be confirmed by further testing within 30 days of the date of the diagnosis.

The Order applies to all insurance carriers providing workers’ compensation coverage in California, self-insured employers, and any other employer carrying its own risk, including the State of California. Within 30 days of a claim being filed, employers can rebut the presumption of liability by disproving that the virus was contracted in the workplace. If unsuccessful, the presumption can only be rebutted by evidence discovered after the initial 30-day period.

Applicable employees must use any paid sick leave benefits specifically available in response to COVID-19 before any temporary disability benefits are paid. If no paid sick leave benefits are available, there is no waiting period to commence temporary disability benefits. Employees are eligible for temporary disability benefits if they meet one of the following criteria:

• If the employee tests positive or is diagnosed with COVID-19, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis; or
• If the employee tested positive or was diagnosed with COVID-19, the employee must obtain a certification, within 15 days of the date of the Order, documenting the period for which the employee was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.

Although workers’ compensation rates are expected to rise as a result, employers will otherwise be protected from civil lawsuits for unsafe workplaces. Regardless, this increased exposure for employers highlights the need to provide a safe work environment for employees returning to the workplace. The Division of Workers’ Compensation will likely be issuing regulations corresponding to this Order.

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