Wednesday, May 6, 2020

Workers’ Compensation Covid-19 Presumption Established in California

Governor Newsom has issued an executive order establishing a workers’ compensation Covid-19 presumption in California. Key introductory points are that the presumption appears to apply to most if not all employees, it is rebuttable, and it is temporary, expiring sixty days after the date of the Executive Order (it has some retroactive application, however). In the interest of efficiency, I will quickly lay out what seem to me to be key sections in distilled and bulleted format [and insert occasional bracketed notes]. The full Order is here. One preliminary comment from this outsider: it appears a great deal of Covid testing and medical diagnostics will be required. One presumes the system has the infrastructure to accomplish it.  

Covid-19 (which I will subsequently refer to as “the disease”) is presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if:

  • An employee (apparently, any employee) is diagnosed with the disease 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.
  • That day was on or after March 19, 2020 [This seems to be the earliest possible date of the presumption's application].
  • The place of employment was not the employee’s home.
  • The diagnosis was performed by a Board-certified physician [it appears that all diagnoses must be conducted by Board-certified physicians] and confirmed by further testing within 30 days of the original date of diagnosis.
  • The presumption is “disputable” but unless “controverted” the Workers’ Compensation Appeals Board is bound by it.
  • The presumption applies only to dates of injury occurring through 60 days following the date of the Executive Order [but, again, note the retroactive application above].
  • If liability for a claim is not rejected within 30 days after the claim is filed, the illness is presumed compensable, unless rebutted only by evidence discovered after the 30-day period. [Does this incentivize contests?]
  • An accepted claim is eligible for all benefits applicable under the workers’ compensation laws.
  • State sick leave benefits available in response to the disease must be exhausted before workers’ compensation benefits are available.
  • If an employee is diagnosed with the disease on or after the date of the Executive Order, the employee must be certified within the first 15 days after the initial diagnosis, and must be recertified every 15 days thereafter, for the first 45 days diagnosis; or
  • If the employee was diagnosed with the disease before the date of the Executive Order [as I read the language retroactive only to March 19, 2020], the employee must obtain a certification, within 15 days of the date of the Executive Order, documenting the period for which the employee had the disease and was unable to work, and must be recertified every 15 days thereafter, for the first 45 days following diagnosis.
  • The Administrative Director of the Division of Workers’ Compensation is authorized to adopt, amend, or repeal regulations deemed necessary to implement the Executive Order. Regulations promulgated in this manner “shall be exempt from the Administrative Procedures Act, except that the Administrative Director shall submit the regulations to the Office of Administrative Law for publication in the California Regulatory Notice Register.” [I assume this means that notice and comment rulemaking are suspended but publication of the rule is still required—I do not know enough California administrative law to ascertain whether this is problematic. It “feels” problematic].
  • The Executive Order applies to all workers’ compensation insurance carriers, self-insured employers, and employers otherwise carrying their own risk, including the State of California.

That is a lot to digest; and I have lots of questions. It is also hard to think about this development without also considering the California Attorney General’s suit against “the Gig companies” this week which, if successful, could greatly expand the pool of employees subject to the presumption – though I doubt events could move that fast. Nevertheless, this is a whirlwind.

 Michael C. Duff

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