COVID-19 Presumption created by Executive Order
- May 6th, 2020
- Tom Richard
- No comments
EXECUTIVE ORDER N-62-20 was issued by the Governor on May 6, 2020. The Order creates a rebuttable presumption of COVID-19 injury under limited circumstances. The presumption expires on July 5, 2020.
The Executive Order applies to any employee, not just essential healthcare workers or first responders. Under the Order, COVID-19-related illnesses shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following requirements are satisfied:
1. Work Time Proximity: on or after March 19, 2020, the employee performed labor or services at the employer’s direction;
2. Positive Test or Diagnosis: the employee tested positive for or was diagnosed with COVID-19 by a California physician;
3. Diagnosis Time Proximity: that diagnosis is made within 14 days after a workday;
4. Work Place Proximity: that workday occurred at the place of employment, not the employee’s home or residence; and
5. Verified by Testing: if the diagnosis of COVID-19 was made without a contemporaneous positive test result to verify it, that diagnosis must be confirmed by subsequent testing within 30 days of the date of the diagnosis, presumably with an antibody test. (However, the reliability of those antibody tests have been called into question by some.)
Only 30 days to Act: If the above conditions are met, the claims can only be denied within 30 days of the day “the claim form is filed under Labor Code section 5401,” rather than 90 days allowed under Labor Code section 5402, unless rebutted by evidence only discovered subsequent to the 30-day period. That would arguably include a negative test result that comes in after the 30 days.
It makes sense for employers to act on any COVID-19 claim within 30 days if possible, even if the applicability of this presumption is in doubt. This avoids even the appearance of a late denial.
Presumption Rebuttal: Because the presumption is rebuttable and not conclusive, it can be rebutted and the claim denied if the employer can show that the risks of workplace infection are not particular to or characteristic of the claimant’s specific employment, or if there was a known non-industrial cause, such as an infected family member or roommate.
UR/IMR: Under the order, UR/IMR seems to still apply to treatment prescribed to treat the COVID-19, as does apportionment of PD.
Sick Leave Offset: Interestingly, where an employer has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any TD or Labor Code section 4850 pay is due and payable. Where an employee does not have such sick leave benefits, the employee shall be provided TD or Labor Code section 4850 benefits if applicable, from the date of disability. Presumably, this offset provision does not apply to normal sick leave or banked PTO.
No Waiting Period: In no event shall there be a waiting period for temporary disability benefits.
Indemnity Certification: To qualify for temporary disability or Labor Code section 4850 benefit payments under the Order, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be re-certified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis. If the employee tested positive or was diagnosed prior to May 6, 2020, the employee must obtain a certification by May 21, 2020, documenting the period of TD, and must be re-certified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
The temporary disability or 4850 pay must be certified by a physician, including MPN providers, a predesignated physician, or a physician in the employee’s group health plan. If the employee does not have a designated workers’ compensation physician or group health plan, the employee should be certified by a physician of the employee’s choosing who holds a physician and surgeon license.
Death Benefit Limited: The death benefit payment that would otherwise be paid to the Department of Industrial Relations’ Death Without Dependents Unit (Labor Code Section 4706.5) is waived.
Negative Consequences: This Order may give pause to some employers who were considering re-starting operations or directing staff to return to work on-premises, at least until the Order expires on July 5th. Re-opening businesses or facilities, and hiring people to work on-site just got a lot riskier.
The Order creates added Workers’ Compensation exposure by shifting societal pandemic costs onto employers and the Work Comp system. The Order may also create possible 3rd party business liability exposure. For example: If an employee who is covered by the Order then goes home and arguably exposes members of their household or community to the illness, this may create liabilities traceable back to the employer if the underlying illness is presumed to be work-related, especially if any one of those 3rd parties became seriously ill.
Is the Presumption Order Constitutional? Many people have raised very interesting questions on whether the Executive Order that created the presumption is Constitutional. For example, Article XIV, Section 4, of the California Constitution grants to the Legislature, not the Governor, the plenary power to make Workers’ Comp laws, and also requires that there be an injury sustained by the worker in the course of their employment, which the COVID-19 presumption seems not to require.
Question? Need Help?
To help folks understand the effect of the Order creating the COVID-19 WC presumption of injury, RTGR Law has recorded a 1 hour On-Demand Webinar available on YouTube, summarizing the Order. The program is available 24/7 and is eligible for 1 hour of claims adjuster CE credit. You can find the PDF of the Webinar here: COVID-19 WC Presumption Webinar PDF
RTGR Law tackles the most challenging claims and controversies on behalf of California public agencies and employers. That’s what sets us apart. Our COVID-19 team is ready to help right now with legal strategies. If you have questions about the presumption or would like strategic help on any complex case, send an e-mail to your closest RTGR Law office:
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- If an employee is working from home and has symptoms of COVID-19, what is the employers responsibility, should they continue to work from home waiting on diagnosis?
First, if they do not qualify for the presumption (for example, they have been working from home since March 19th) the ER does not have to offer the EE a claim form.
Second, if they are well enough to continue working from home, I see no reason why they should not be allowed to do so, otherwise they can take a sick day.
While it is probably not required, its probably OK to recommend that they consider getting medical attention for themselves if they think their illness is serious (e.g. COVID-19) and that they prudently avoid infecting others at home or in their communities.
- What if an employee knows and acknowledged they obtained CVID-19 from a weekend event they attended and they are currently working from home and has not been in the office within 5 days, are they covered by WC and should we offer them a form?
There are two parts to the question. First, are they covered by the presumption? Yes, if they were diagnosed or tested positive with 14 days of the last day at the workplace. If so, ER has a duty to offer the EE a claim form. Second, If EE then files the claim, is the presumption rebuttable? Probably so, given the admission of non-workplace contraction.