Governor Signs Executive Order on Workers’ Compensation
Governor Gavin Newsom issued an Executive Order on May 6th creating a rebuttable presumption that a worker who is working outside the home at the direction of the employer and who contracts a COVID-19-related illness incurs a work-related injury for purposes of workers’ compensation.
The order contains the following provisions:
- A rebuttable presumption of work-related injury;
- Applies to all workers who are working outside the home at the direction of their employer. The EO is not restricted to essential workers;
- Eligibility threshold to be a positive test for COVID-19 or a diagnosis by a physician or surgeon licensed by the California Medical Board. The certifying physician may be a physician in the employee’s group health plan. If diagnosed, the diagnosis it must be confirmed by a positive test within 30 days;
- Apportionment still applies;
- Time for the employer to deny claim reduced from current 90 days to 30 days;
- Temporary disability (TD)/salary continuation payments start only after worker uses all other state sick leave benefits;
- Department of Industrial Relations will not require the employer to pay a death benefit in the situation where an injured worker dies without a beneficiary;
- Re-testing every 15 days during first 45 days of TD payments;
- No waiting period for TD payments;
- Administrative Director given broad emergency rule-making authority to implement the Order;
- Claims to be for injuries beginning March 19th and for 60 days from the date of the Order (May 6) which could be longer than the duration of the Shelter-In-Place Order.
- Nothing in this Order modifies or suspends any workers’ compensation statute or regulation not in conflict with this Order, or to reduce or eliminate any other right or benefit to which an employee is otherwise entitled under law, including the Families First Coronavirus Recovery Act, collective bargaining agreement, or Employee Benefit Plan, including group health insurance, that is in effect prior to March 19, 2020.
COVID-19 claims are currently covered by an employer’s workers’ compensation insurance. However, under current law, the burden of proof to show that contraction of the illness occurred at work is on the worker. This Executive Order has the effect of reversing the burden of proof and placing it on the employer or the employer’s insurance company. On the positive side, if there is one, it is anticipated there will be substantial civil litigation against employers for failure to adequately protect their workers. These civil cases would be stopped or blocked because workers’ compensation coverage is an exclusive remedy for injured workers.