RE: California EXECUTIVE ORDER N-62-20: Concerning COVID-19 and Workers’ Compensation
May 7, 2020
Below is a sample of some of the firm’s (ENGLAND PONTICELLO & ST.CLAIR) (www.eps-law.com) written work. Information contained in these articles may not reflect the ever changing state of the law and should not be relied upon without first seeking legal advice.
On May 6, 2020, California Governor Newsom issued an Executive Order (“Order”) regarding Covid-19 illness and workers’ compensation. As we have had many inquiries from our clients and friends in both service and production industries as diverse as healthcare, engineering and manufacturing, we thought it best to expeditiously issue our analysis of this Executive Order and its effect, based on what we know to date.
The Order sets forth specific procedural and evidentiary standards that apply to workers claiming COVID-19 illness as a result of their employment. Notwithstanding the constitutional issues implicated by potential substantive and procedural changes emanating from a source other than the legislature, below we will outline the scope and consequences.
I. Scope of Order?
The Order is intended to apply to “Any COVID-19-related illness of an employee”.
II. Location of Work Covered by the Order?
The Order applies to persons who have continued to work outside of their home at the employer’s premises or employer designated work sites.
- Location NOT covered:
An employee’s home. The Order does NOT apply to employees whose place of employment is their home. Essentially, the Order appears to be meant to apply to work outside of the homes during the pandemic and excludes remote workers who work at home solely.
III. What Time Frame Does the Order Apply to?
The Order is dated May 6, 2020, however it asserts a retroactive effect to March 19, 2020. The Order asserts that it “shall only apply to dates of injury occurring through 60 days following the date of this Order.” In particular, the Order specifically applies to employees who are diagnosed with Covid-19 during the time frame of March 19, 2020 through July 5, 2020. Although we are mindful that an extension could issue, as of now, the time frame involved is March 19, 2020 through July 5, 2020.
IV. What is the Effect of the Order on COVID-19 claims during the Order’s Time Period?
The effect of the Order is largely two-fold: One is that it raises a presumption, namely that “Any COVID-19-related illness shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits…”.
Secondly, the Order creates a new and shorter claim review period. The Order dictates a 30 day period to reject a claim, lest it become presumed compensable. Specifically, the Order notes LC 5402 (and its 90 day period to accept or deny a claim), and Orders that a different period (30 days) apply to the Covid-19 claims.
A rebuttable presumption of industrial injury of COVID-19-related illness exists where the employee performed labor or services for a date of injury from March 19, 2020 through 60 days of the Order, or through July 5, 2020.
March 19, 2020 <<>> July 5, 2020
The Order notes an industrial diagnosis of COVID-19-related illness affords the employee all of the same medical, indemnity, and death benefits afforded to all other work-related injuries with limited exceptions.
V. What must be established for the presumption to arise?
- The employee must show they were diagnosed with Covid-19 and worked for the employer within the last 14 days at their place of employment at the employer’s direction;
- The employee’s place of employment was not their residence.
- The diagnosis of Covid-19 must be made by a physician licensed by the California Medical Board. The initial diagnosis of Covid-19 must be confirmed by additional testing within 30 days of the original diagnosis. a) Where No Presumption May Apply:
If an employee was off of work because they suspected COVID-19-related illness, or if a doctor told them to quarantine, but there was no confirmation of the suspected diagnosis within the Order’s time periods, then there appears to be ineligibility for the injury presumption. This does not mean a claim could not be pursued or proven, but rather no presumption would apply.
VI. How is Claims Administration effected?
- Defendants only have 30 days from the date of claim notice per Labor Code section 5401 to investigate or deny the claim of COVID-19 injury. After 30 days, the COVID-19 diagnosis and injury will be presumed compensable in workers’ compensation.
- There is no waiting period for payment of temporary disability benefits in COVID-19 cases.
- If the employer has decided to offer “paid sick-leave benefits” specifically in response to Covid-19, the employee must exhaust those benefits prior to seeing temporary disability or section 4850 benefits.
- To receive temporary disability benefits, the employee must be certified for temporary total disability within 15 days of the initial diagnosis and recertified every 15 days thereafter for the first 45 days following the diagnosis.
- Employees who tested positive for COVID-19 related illness prior to the Order (prior to May 6, 2020 but after March 18, 2020), may within 15 days of the Order obtain a medical certification of periods they were previously TTD.
- To obtain TTD, the employee must be certified for TTD by a physician with a California physician and surgeon licensed who is either (1) part of the Medical Provider Network, (2) employee’s predesignated physician, or (3) a physician in the employee’s group health plan.
- Although an employee’s dependents may pursue death benefits for an industrial COVID-19 death, the State of California’s Death Without Dependents Unit has waived the right to collection for any industrial deaths arising under section 4706.5.
At this juncture, as everyone tries to be safe, continue employment as best as possible and address the unknown, we have indications of those scenarios of COVID-19-related illness where a presumption will be found to apply, to whom, and for work at which particular locations. We also have a finite period of this presumption for the time being, which may limit any issues as to scope, applicability or constitutionality of such an Executive order, but an extension may bring those issues to light if issued. We will continue to monitor.