CALIFORNIA: Workers’ comp presumed if positive for COVID-19

Employees who test positive for COVID-19 (coronavirus) will have an easier time getting workers’ compensation benefits under an order signed by California Governor Gavin Newsom on May 6, 2020 (Executive Order N-62-20). Under the order, employees who tested positive for, or were diagnosed with, COVID-19 on or after March 19, 2020, will be presumed to have contracted the illness during the course of their employment if: (1) the employee tested positive or was diagnosed with COVID-19 within 14 days after the employee performed work at the employer’s direction; (2) the work performed occurred on or after March 19, 2020; and (3) the work wasn’t performed at the employee’s home or residence. If the employee was diagnosed with COVID-19, the diagnosis must have been done by a properly licensed physician and confirmed by testing within 30 days of the date of diagnosis. If an employee files a workers’ compensation claim and meets all of the criteria listed above, the employer can overcome the presumption of a valid claim by providing evidence that the employee didn’t contract COVID-19 during the course of their employment. The presumption is only valid for 60 days after the date the order was signed (meaning the presumption is valid for employees who tested positive or were diagnosed with COVID-19 from March 19 through July 5, 2020, unless otherwise extended).

The order also states that if an employee has paid sick leave benefits specifically available in response to COVID-19, the employee must use and exhaust those benefits before any “temporary disability benefits” are due and payable. We believe this is referring to workers’ comp time loss payments for temporary inability to work, but we’ll report on any clarifications on this point. If an employee doesn’t have any such paid sick leave benefits available, the employee must receive temporary disability benefits (i.e., probably workers’ comp time loss payments) from the date of disability, without a waiting period.

Tips For Employers: If you have an employee who tests positive for COVID-19 during the effective period of this order, be aware that it’s likely they’ll be awarded workers’ comp benefits for their time away from work. If you have information that may help rebut the presumption that they contracted the illness at work, be sure to document that information and share it with your workers’ comp carrier when appropriate.