Today, Governor Newsom issued an Executive Order (EO) mandating that employees who are diagnosed with COVID-19 within 14 days of performing work outside of their homes will be presumed to have contracted the virus in the course and scope of their employment and will be entitled to workers’ compensation benefits as a result. The presumption applies to diagnosed cases between March 19, 2020 and July 5, 2020. An employer can try to rebut the presumption and disprove that the virus was contracted in the workplace (good luck with that). However, if the employer does not succeed in doing so within 30 days of the claim, the injury is presumed to be compensable (unless the employer subsequently discovers new evidence that disproves causation). The EO applies to all insurance carriers providing workers’ compensation coverage in California, self-insured employers, and any other employer carrying its own risk, including the State of California. An employee with an accepted work comp claim is eligible for all benefits normally available through workers’ compensation under California law. The EO does not diminish any employee rights or benefits under federal or state law, including but not limited to paid sick leave benefits, collective bargaining agreement benefits, and group health insurance benefits. If an employee has paid sick leave benefits specifically available in response to COVID-19, the employee must exhaust those benefits before being eligible for temporary disability benefits. Finally, the EO specifically states that insurance carriers will not be restricted in their ability to adjust the costs of their policies as a result of compliance with the EO. In plain English, this translates to “expect work comp premiums to go up in California.”
Employers likely will be displeased at the news of this latest EO. On the bright side, note that providing work comp coverage for COVID-19 does have one benefit for California employers—it will provide protection from civil lawsuits for negligence and wrongful death by workers and/or their families based on allegations that the employee contracted the virus at work due to unsafe work practices of the employer. Employers can argue that such claims are barred by the doctrine of workers’ compensation exclusivity (i.e. work comp provides the exclusive remedy for injuries suffered in the course and scope of employment). Does this benefit outweigh the downside of likely skyrocketing work comp premiums? Maybe not.
