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COVID-19 Presumption Expired: Now What?

COVID-19 Presumption Expired: Now What?

Sunday, July 5, 2020 was the last day of the COVID-19 presumption of workers’ compensation injury created by Executive Order N-62-20. The Order has not yet been extended.

There is pending legislation on COVID-19, including SB1159, which would codify the presumption created by Executive Order N-62-20. However, that legislation could take until the end of September to pass. This creates the potential for a gap between July 6, 2020 and September 30, 2020 where there is no rebuttable or conclusive presumption. (For a review of all the bills at the State Capitol, visit our COVID-19 Bills Pending page).

The Executive Order stated that “[t]his presumption shall only apply to dates of injury occurring through 60 days following the date of this [o]rder,” which was July 5, 2020. However, the Order also states that any employee who tested positive or received a COVID-19 diagnosis “within 14 days after a day that the employee performed labor or services at the employee’s place of employment” was covered by the presumption.

Therefore, if an employee worked on July 5th or earlier and received a positive test result or diagnosis thereafter, they may still be covered by the presumption, through at least 14 days after the order’s expiration.  This means that the presumption may still apply if there was a positive test result or diagnosis by July 19, 2020.

Here is what we recommend to our clients: because of the potential that any legislation codifying the Order will have retroactive effect, for COVID-19 claims made after July 5, 2020, employers are encouraged to continue with a similar process as is now being followed. (For a full analysis of Executive Order N-62-20, visit our Presumption blog post.)

In short, if an employee tested positive or was diagnosed with COVID-19 on or before July 19, 2020, and on or before July 5, 2020 they met the time/place work proximity requirements of the presumption, continue to offer a DWC-1 Claim Form.

Upon receipt of the signed DWC-1 Claim Form, continue to make a determination to accept or deny within 30 days. For dates of injury after presumption expired, the time frame to make a compensability decision technically reverts to 90 days from the date of the filing of DWC-1 Claim Form, per Labor Code sec. 5402. Nevertheless, if the 30-day rule is given retroactive effect and a post-July 5, 2020 claim was denied after 30 days, the denial will arguably be untimely. Therefore, continue to act within 30 days.

Unless and until there is legislative action or an extension of the executive order, those post-presumption claims can probably be denied if the employee is not in a high-risk or very high-risk occupation. (For a full analysis of the non-compensability of COVID-19 claims absent a presumption of injury, visit our COVID-19 FAQ page.)

Relevant questions for any COVID-19 claim investigation include:

  • Asking the employee about how he or she believes COVID-19 was contracted, or where else they may have been exposed to a sick person or someone with COVID-19 outside of work.
  • Asking about the employee’s off-work activities – have they traveled, gathered in groups of any size, or visited enclosed spaces such as grocery stores or other open businesses? Have they waited in a line where somewhere was less than 6 feet away without a face covering?
  • Investigating the employee’s work environment. Have other employees in the same area tested positive? Did the employee’s job duties bring him or her into contact with the public? Were the work areas so crowded that proper social distancing was not practical?

If legislation with retroactive effect passes, and a claim has been denied in the interim based on a non-presumptive analysis, will the employer have to then go back and reassess those claims using a presumption analysis?  That is unknown, but we say “yes” if the hypothetical new presumption law creates a conclusive presumption, and “probably not” if it is the law creates a rebuttable presumption, unless the employee is in a high-risk or very high- risk occupation.

Question? Need Help?

RTGR Law LLP will continue to monitor these events and develop sound legal arguments for California employers. We post updates here and on our LinkedIn page. Be sure to follow us to stay current.

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:

Oakland   oak@nullrtgrlaw.com

Los Angeles   la@nullrtgrlaw.com

Sacramento   sac@nullrtgrlaw.com

San Jose   sj@nullrtgrlaw.com

Orange County  oc@nullrtgrlaw.com

Van Nuys   van@nullrtgrlaw.com

San Diego   sd@nullrtgrlaw.com

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