Governor’s Executive Order of May 5, 2020: COVID-19 Workers’ Compensation Rebuttable Presumption
co-written by Mike Pott and Jen Hamelin
During Governor Newsom’s press conference yesterday, he announced that he has signed an Executive Order N-62-20 that provides workers’ compensation (WC) coverage for workers that contract COVID-19 as a result of their employment. This extends WC benefits to those who test positive for COVID-19 and broadens the eligibility to all sectors of the economy. The Governor and the Department of Industrial Relations emphasized that this is a rebuttable presumption, implying that non-industrial exposures will not be covered under the WC system. While this Executive Order provides a temporary provision of WC benefits during the immediate crisis, it still allows the legislature to come up with a long-term solution.
Here are the highlights of the Executive Order:
- It is effective retroactively to the Governor’s original March 19, 2019, stay-at-home order and continues through July 5th.
- A COVID-19-related illness to an employee is presumed to arise out of and in the course of employment if the following requirements are satisfied:
- The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day in which the employee performed work for the employer;
- The date the employee performed the work referenced above was on or after March 19, 2020;
- The work performed was at the employer’s direction;
- The employee’s place of work was not at their residence;
- Diagnosis must be made by a physician holding a physician and surgeon license and the diagnosis is confirmed by testing within 30 days of the diagnosis. This means someone like a Chiropractor cannot certify temporary disability for COVID-19.
- The presumption can be rebutted if there is evidence that the employee may have contracted COVID-19 outside of the workplace.
- The presumption only applies to dates of injury between March 19, 2020 and July 5, 2020.
- If a claim is disputed and delayed, the normal investigation must occur; however, a final determination must be made within 30 days instead of the standard 90 days, unless evidence in support of the denial is discovered after the 30-day period.
- Benefits provided for accepted claims include all benefits applicable under the WC laws of the state including medical treatment, disability indemnity and death benefits.
- Where an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability (TD) benefits or Labor Code Section 4950 benefits are due.
- To qualify for TD or Labor Code 4850 benefits, a waiting period (initial 3 days) shall not apply and the employee must satisfy one of the following:
- An employee who tests positive or is diagnosed with COVID-19 after May 5, 2020, the employee must be certified for TD within the first 15 days after the initial diagnosis, and be recertified for TD every 15 days thereafter, for the first 45 days following diagnosis;
- An employee who tested positive or was diagnosed prior to May 5, 2020, must obtain certification within 15 days of the date of the Order documenting the period for which the employee was temporarily disabled and must be recertified for TD every 15 days thereafter for the first 45 days following diagnosis.
- The Order shall apply to all WC insurance carriers, self-insured employers or any other employer carrying its own risk.
- Apportionment applies pursuant to Labor Code Sections 4663 and 4664.
- The death benefit payment that would otherwise be paid to the Department of Industrial Relations’ Death Without Dependents Unit (Labor Code Section 4706.5) has been waived.
Legislative Update: Return of the Legislature
After being off for nearly two months due to COVID-19, the Legislature is resuming this year’s legislative session this week after a nearly two month break. As this year’s legislative session ends on August 31st and COVID-19 concerns will cause changes to how the legislature operates, modifications are being made to the schedule of committee hearings. The head of each house have asked legislators to review their bills and only put forward those that they truly feel need to be heard this year. This will result in the withdrawal of many bills that were introduced earlier this year. Due to the truncated schedule, it is likely that only a handful of bills will be moved forward in addition to bills specifically related to COVID-19, wildfires and clarification of the independent contractor employment bill from last year.
A couple of intent bills were recently amended to turn them into COVID-19 bills specific to workers’ compensation claims:
AB-664 (Cooper) introduces an expansion of presumptions to include communicable diseases, including but not limited to COVID-19, for all firefighters, healthcare providers and peace officers (under Penal Code Section 830). This would be a conclusive presumption providing benefits that include medical care, disability, death benefits, food/lodging expenses and reimbursement for costs incurred by the employee to purchase equipment and personal protective equipment. The bill also prohibits any application of apportionment to permanent disability. Benefits would be provided for those that are quarantined at the direction of either their employer or a medical provider. Further, the bill provides post-termination filings up to 90 days after the last day worked. If enacted, the bill would be retroactive to January 1, 2020, and it does not have an end date.
SB-1159 (Hill/Daly) would create a rebuttable presumption to include COVID-19, but would limit it’s applicability to those who are critical workers in the service of an essential critical infrastructure employer. The bill would provide benefits only for those that have a positive COVID-19 test, or a diagnosis by a medical provider if a test was not available, and if the employee was hospitalized for a period of time (not yet specified). It would not prohibit the application of apportionment to permanent disability, should the contraction of COVID-19 aggravate any pre-existing conditions. In addition, the bill does not provide for post-termination filings and it will have a sunset date, but the specific date is yet to be determined.
SB-893 (Caballero) introduces an expansion of presumptions to include bloodborne infectious diseases, methicillin-resistant staphylococcus aureus skin infections, tuberculosis, meningitis, COVID-19, musculoskeletal injuries and respiratory disorders for all nurses and healthcare workers. This would be a rebuttable presumption providing benefits that include medical care, disability and death benefits. It would allow filings up to 60 months following termination from employment for infectious diseases and musculoskeletal injuries and up to 120 months for respiratory diseases.
AB-196 (Gonzalez) introduces a conclusive presumption for COVID-19 for all critical essential workers who are not firefighters, peace officers and healthcare workers. It is basically a companion bill to AB-664 above to address persons who would not be covered under that bill. This bill would provide benefits to those where COVID-19 has developed or manifested itself. It would allow post-termination filings for up to 90 days after the last day worked. If enacted, it would be retroactive to March 1, 2020, and continuing forward as there is no sunset date.
Please note it is highly likely that some form of legislation on this topic will pass, therefore it will be important for entities to make their thoughts and concerns known to their legislator so that we can help to make changes to the bills, to the extent possible, to improve them.
Coverage & Claims Administration
With the Executive Order implementing temporary provisions for COVID-19 findings within the workers’ compensation system, we recommend that you review any policies, collective bargaining agreements or Resolutions adopted for comparison. This includes actions taken either before or after the March 19, 2020 effective date.
Additionally, we recommend members review existing claims filed for COVID-19 to ensure compliance with the Order. Do you have any disputed claims that now need to be accepted? Do you have any claims where temporary disability or 4850 benefits were paid that are not due and owing per the Order or, vice versa, benefits that are now due and owing? If yes to any of these, we recommend you to do this within 14 calendar days to avoid any potential penalties for untimely determinations.
Please also don’t forget to report all COVID-19 claims filed to the EIA. This includes all claim types, whether positive or negative COVID findings.
If you have any questions about the legislation or COVID-19 WC claims in general, please feel free to contact Mike Pott at email@example.com or Jen Hamelin at firstname.lastname@example.org. Both can also be reached at (916) 850-7300.