Much has been said about the cost to employers from Governor Newsom’s May 6, 2020 Order regarding workers’ compensation coverage for COVID-19. In addition to significantly raising insurance costs, the Order creates additional questions about coverage, leaves of absences and evidence to rebut the the presumption that a working employee who contracts COVID-19 during the stay-at-home order is entitled to workers’ compensation benefits.
The Presumption. Per the Order, a COVID-19-related illness is presumed to be an on-the-job injury if the employee tested positive for or was diagnosed with COVID-19 within 14 days after (s)he provided services in the workplace at the employer’s direction.
The Order does not define or describe the nature of a “COVID-19-related illness.” Since most COVID-19 patients have compromised health systems, will workers’ compensation cover treatment for those ailments too?
The Order does exclude the person’s home as the workplace. Thus, only if the employee comes to the premises to perform work requested by the employer does the rebuttable presumption apply.
Rebutting the Presumption. An employer has 30 days to accept or reject a claim. Thus, the employer and its insurer must work quickly to discover facts controverting the presumption. The Order does not suggest what facts could controvert the presumption. Evidence that persons in the employee’s family or intimate circle of friends contracted COVID-19 could controvert the presumption. Will this require the employer to trace the employee’s contacts and public activity? For example, did the employee visit the beach or, far worse, take a trip to Walmart in the last 14 days? Will statistics such as those released in New York state showing that 63 percent of hospitalized COVID-19 patients were at home affect the rebuttable presumption? Will an employer’s safe practices in the workplace make a difference in rebutting the presumption? We don’t know the answers to these questions.
COVID-19 Leave. If an employee has paid sick leave benefits “specifically available in response to COVID-19,” those benefits must be exhausted before temporary disability benefits (substitute pay while away from work) are paid to the employee. It is not clear whether this Order refers to the Emergency Paid Sick Leave and FMLA Expansion Leave only or whether it could include other sick leave, such as employer-provided or through state-mandated Paid Sick Leave. Given the language of the Order, it would appear that only leaves specifically for COVID-19 must be exhausted.
The employee must be certified for temporary disability within 15 days of a positive test or diagnosis, and recertified every 15 days thereafter, for the first 45 days. If the employee tested positive before the Order was issued, certification must be made within 15 days of May 6th.
Summary. The law clearly creates a rebuttable presumption for any employee who contracts COVID-19 within 14 days of working at the office. However, it creates more questions than it answers. For example, what will qualify as a COVID-19-related illness? What evidence will suffice to rebut the presumption? What specific leaves must be exhausted before temporary disability benefits are available to the employee?
COVID-19 has introduced unprecedented challenges for employers. Contact your attorneys and other professional advisors to assist you in addressing these complicated issues.
Governor Newsom’s Order can be found here: https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf