On May 6, Governor Newsom signed an executive order extending workers’ compensation to essential workers who test positive for COVID-19. The order applies to all essential workers, from healthcare workers to grocery store employees.
While other states have also established rebuttable presumptions that certain workers with COVID-19 are entitled to workers’ compensation, this order is much broader in both scope and coverage. More than ever, employers should closely follow OSHA and CDC guidelines to minimize and prevent exposure in the workplace.
The order mandates 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, thus entitling them to workers’ compensation benefits. This will apply to cases diagnosed between March 19, 2020 through July 5, 2020. An employer can attempt to rebut this presumption within 30 days of the claim, but the criterion is strict, and employers are not likely to be successful.
Furthermore, the order 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. If the claim is accepted, an employee will be eligible for all benefits normally available through workers’ compensation under California law. The order 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. The order specifically states that insurance carriers may adjust the costs of their policies because of compliance with the same. As such, we predict that employers’ workers’ compensation premiums will go up.
While increased premiums adds another layer of burden to employers already struggling with the repercussions of COVID-19, the order will also provide some protections to employers in future civil lawsuits for negligence and/or wrongful death. For example, employers can now assert that workers’ compensation is the exclusive remedy for such claims as those injuries would fall under the course and scope of employment.
The executive order can be found here. Employers should speak with their carriers and counsel regarding the order and how to best manage claims moving forward. The California Department of Industrial Relations has announced that additional guidance will be forthcoming in the coming days.
We will provide further updates as additional guidance is published in the coming days and weeks.