By Jaimee K. Wellerstein, Esq.

On May 6, 2020, Governor Newsom issued Executive Order N-62-20 (Order), extending workers’ compensation benefits to employees who contract COVID-19 while working outside of their homes during California’s stay-at-home order. The Order creates a rebuttable presumption that if the employee worked outside the home and developed a COVID-19-related illness, then the illness arose out of the course of employment for workers’ compensation purposes. The presumption does not seem to apply if the employee solely worked from home.

This rebuttable presumption is retroactive to March 19, 2020, when Governor Newsom issued his first shelter-in-place order. For now, it extends to July 5, 2020. However, we suspect it may be extended.

While several other states have established rebuttable presumptions that certain workers who develop COVID-19-related illnesses have valid workers’ compensation claims unless the employer can prove the employee contracted the virus outside of work, California’s Order is not surprisingly the most far-reaching.

What Employees Are Presumed to Qualify for Workers’ Compensation Under the Order?

To qualify for Workers’ Compensation under the Order, the employee must meet all of the following criteria:

a) The employee tested positive for or was diagnosed with COVID-19 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;

b) The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;

c) The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and

d) Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of diagnosis.

The Order specifies that the place of employment cannot be a home or residence. Therefore, the presumption does not appear to apply to employees working remotely, or those who choose to go to their workplace without specific direction from their employer.

How Can Employers Rebut the Presumption?

This Order also significantly reduces the period in which an employer may deny an employee’s workers’ compensation claim from 90 days to 30 days. The 30 days begins on the date the claim form is filed.

Employers can rebut the presumption created in the Order by (1) establishing that the injured worker does not meet one of the four criteria listed above, or (2) using “other evidence” to establish another cause of the COVID-19 illness.

Employers will certainly place themselves in better position to defeat the presumption if they can establish that they are taking steps to minimize or eliminate the risk of COVID-19-related injury, and following applicable federal, state, and local health and safety guidelines.

Employer Takeaway: Employers should closely monitor applicable health mandates and guidance for preventing and minimizing the risk of COVID-19 exposure, and implement necessary changes in the workplace. Employers should also closely monitor workers’ compensation claims, beware of shortened denial deadlines, and move quickly to dispute any appropriate COVID-19 claim.

Have more specific questions about how to maneuver the evolving COVID-19 landscape? Contact your attorneys at Bradley, Gmelich & Wellerstein LLP. We are here to help.

Jaimee Wellerstein Jaimee K. Wellerstein, Esq. is a Partner at Bradley, Gmelich & Wellerstein LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.
Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies. Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbell, the highest peer rating available.