EMPLOYMENT AND WORKERS’ COMPENSATION UPDATE: COVID-19 IMPACT AND EMERGENCY ORDER
On May 6, 2020, Governor Newsom issued Executive Order N-62-20 creating a new presumption of injury caused by exposure to the novel coronavirus. Without commenting upon the authority to unilaterally create a statute, this order creates a presumption of industrial injury if a worker is exposed to COVID-19 from March 19, 2020 through July 5, 2020. Furthermore, this presumption of industrial injury will ONLY be found if ALL of the following are satisfied:
- The employee tested positive or diagnosed with COVID-19 within 14 days after a day of work
- That the work occurred at the employer’s direction and at employer’s location
- The COVID-19 diagnosis is re-confirmed by a physician holding a physician and surgeon license (no chiropractors, acupuncturists nor optometrists) issued by the California Medical Board within 30 days of original diagnosis.
The presumption does not apply to an employee that works from home. However, to those employers that permit some of its work force to work remotely a few days a week with the remainder on site—out of convenience for the worker—more likely than not, the presumption is most likely satisfied.
Upon notice of a claim (DWC-1) for contracting COVID-19, an employer has 30 days to determine liability; far shorter than the usual 90 days under Labor Code section 5402. If an employee fails to determine compensability within 30 days, then exposure to COVID-19 virus is presumed compensable; that status can be unseated by evidence acquired only after the 30 day window expires.
Workers’ Benefits include:
- Medical treatment including hospitalization
- Temporary disability (TTD 2/3 of lost wages up to $ 1,949.15): note an employee with paid sick leave must exhaust that benefit prior to seeking temporary disability. In order to qualify for TTD, an employee must:
- Be certified by a physician holding a physician and surgeon license issued by the California Medical Board (chiropractors cannot certify) for TTD within 15 days initial diagnosis
- Recertify every 15 days for the first 45 days
- Thereafter, certification extends to every 45 days
- Permanent disability
- Death benefits
For further discussions or questions regarding this order, feel free to contact Neil Gilmor, who heads up our Workers’ Compensation Department.