Workers protections during the COVID-19 Pandemic and How Employers can Rebut the Presumption
COVID-19 has had dramatic effects on the daily lives of Americans, causing many individuals and companies to rethink how they approach the work office environment. As a result of the pandemic, many employers and employees have shifted to the remote work environment. However, for many essential workers—who do not have the benefit of working from home—reporting to their work environments pose a risk of exposure to the novel coronavirus. Seeing the need to provide protections for the state’s “essential workforce,” Governor Gavin Newsom, on May 6, 2020, signed Executive Order N-62-20, which creates a substantial change in how to address industrially contracted COVID-19. Executive Order N-62-20 creates a rebuttable presumption that any employee who contracts COVID-19 because of employment will be awarded workers compensation if the following four requirements are met:
- The employee tested positive for or was diagnosed with COVID19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
- The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;
- The employee’s place of employment was not the employee’s home or residence; and
- The COVID-19 diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
Governor Newsom’s stated reasons for the need for workers protection includes the high risk of exposure to and contracting COVID-19, which may lead to hospitalization and medical treatment, a recognition that employees who report to work while sick pose a risk to their fellow coworkers, themselves, and those who they come in contact with, and providing workers compensation where appropriate to reduce the spread of COVID-19 and help mitigate the effects of COVID-19 among Californians.
For workers who contract COVID-19 in the course of their employment, this presumption created by the Executive Order makes it easier to prove that they contracted COVID-19 on the job. Without these protections, administrators who oversee workers compensation would likely deny claims from the start, which can delay benefits and medical treatment.
An important note for both employers and employees is that the presumption is retroactive to March 19, 2020, when the Governor first issued a shelter-in-place order, and extends for 60 days. However, as COVID-19 cases continue to rise, the 60-day shelf life may be extended. The Executive Order also provides a significant update on the period employers have in denying claims: from 90 days to 30 days. By reducing the period required to deny claims, the Executive Order alerts employers to immediately report all COVID-19 related claims to their insurance companies and claims adjuster.
Executive Order N-62-20 entitles employees with accepted COVID-19 workers’ compensation claims to disability benefits, however, it is important to note for both employers and employees that employees must exhaust any other sick leave benefits pursuant to local law or ordinance or the Families First Coronavirus Response Act (FFCRA) in order for the disability benefits to go into effect. Employers need to determine the eligibility of the employee under the FFRCA and be able to communicate such eligibility to their insurance carrier to avoid duplicate payments. If an employee does not have such sick leave benefits, the Executive Order provides that such employee shall be provided temporary disability benefits. Moreover, waiting periods for temporary disability benefits shall be nonexistent under the Executive Order. To qualify for temporary disability benefits under the Executive Order, an employee must meet either of the following criteria:
- If the employee tests positive or is diagnosed on or after the date of this Order, 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 prior to the date of this Order, 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.
Additionally, employees must be certified for temporary disability benefits by a licensed California Medical Board physician or surgeon.
For “essential workers,” the new workers’ compensation benefits under the Executive Order should be welcoming news. But the benefits are not exclusive to “essential workers.” All employees that perform their work in the state of California at the direction or control of the employer, and who perform such work outside their usual residence or home, are also protected by the Executive Order.
How Employers Can Rebut the Presumption
For employers, the Executive order lays out two ways to rebut the presumption:
- The employer can establish that the injured worker does not meet one of the four criteria used to award workers’ compensation; or
- The employer can use “other evidence” to establish another cause of the COVID-19 illness.
Using “other evidence” means that employers should conduct investigation into the facts of each workers’ compensation claim, including the employee’s activities outside of work, to determine if the employee contracted the COVID-19 illness outside of work.
California and Colorado companies conducting business in California should follow applicable local, state, and federal health and safety guidelines to position themselves. Following CDC guidelines such as providing masks or face coverings, personal protective equipment (PPE), following physical distancing guidelines of the recommended six feet, conducting temperature checks, and providing employees with hand sanitizer, can help reduce the spread and risk of contracting COVID-19.
Conclusion
Executive Order N-62-20 provides employees with workers’ compensation benefits, provided the four requirements are met. For employers, this Executive Order means working closely with employees to follow local, state, and national health and safety guidelines, helping to reduce the risk of contracting COVID-19 at work. Employers should also monitor their workers’ compensation claims with their insurance providers. Denial timelines have been shortened from 90 days to 30 days, thus, employers should move quickly once an employee files a claim. COVID-19 has brought financial strains for companies and as such, it is imperative that employers work quickly to address these claims to increase the chance of successfully defending against the presumption created by this executive order. Whenever possible, employers should have employees work from home. However, where it is impossible to have employers work from home, employers should provide a safe and healthy workplace for their employees by following local, state, and national guidelines.
Authors: Camille Joy DeCamp, Azar M. Khazian, Clement Asante