Following the lead of other states, Governor Newsom issued an Executive Order on May 6, 2020, allowing any COVID-19 related illness of an employee to be presumed industrially compensable. Retroactively from March 19, 2020 through July 5, 2020, this presumption applies to all workers that tested positive or were diagnosed with COVID-19 within 14 days after a day the employee had to report to their worksite. This does not apply to anyone who worked from home but for those that had to report to the worksite. Any diagnosis of COVID-19 must be done by a physician or surgeon and the diagnosis must be confirmed by further testing within 30 days of the diagnosis.
Those who fit this criteria are entitled to medical treatment and indemnity benefits, although the worker must be certified for temporary disability within 15 days of the diagnosis and re-certified every 15 days for the first 45 days following the diagnosis to receive such benefits.
The Department of Industrial Relations will also waive the collection of any Death without Dependents benefits for those workers who may have died from presumed work-related COVID-19.
Any issues regarding apportionment are allowed and this order allows for statutory workers’ compensation benefits only, so there are no housing or living expenses included among these benefits. Finally, employers have 30 days to rebut the claim, rather than the standard 90 days for typical workers’ compensation claims.
A copy of the Executive Order of May 6, 2020 can be found here.
Our Thoughts
As of May 6, 2020, thirteen states (Alaska, Arkansas, California, Florida, Kentucky, Michigan, Minnesota, Missouri, New Hampshire, North Dakota, Utah, Washington, and Wisconsin) have enacted similar orders, legislation, or administrative policy changes, allowing for a presumption of occupational disease for those who contract COVID-19 on the job. Most states limit this presumption to first responders and health workers, while others are similar to California, expanding the presumption to all essential workers.
Other states have similar legislation pending: Louisiana, Massachusetts, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and Vermont. Illinois enacted and then withdrew an emergency rule allowing for the rebuttable presumption.
We are all on this journey together and the team at Adelson McLean are here to provide you with as much clarity as possible and help you navigate through these extraordinary times.
