COVID-19 and Increased Workers’ Comp Liability for Employers - May 28, 2020


Earlier this month (May 6, 2020), Governor Gavin Newsom issued an executive order that presumes an employee who works onsite and then tests positive with COVID-19 was most likely infected at work and is entitled to workers’ compensation benefits. This is a very surprising and concerning executive order.

The order basically states than an employee will be presumed to have contracted the virus at work if all of the below are met:

1. The employee tested positive for or was diagnosed with COVID-19 within 14 days after the employee worked at his or her place of employment at the employer’s direction.

2. The date the employee worked is between March 19, 2020 and July 5, 2020.

3. The workplace was not in the employee’s home or residence.

4. If the employee was diagnosed with COVID-19, but not tested, the diagnosis was given by a California licensed physician licensed and is confirmed by further testing within 30 days of the diagnosis.

Employees claiming COVID-19-related illnesses are eligible for all workers’ compensation benefits, including “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” There is no waiting period for temporary disability benefits, but an employee entitled to COVID-19 paid sick leave must exhaust that paid leave first.

Although this executive order has a July expiration date, there are several bills pending in the California State Legislature to extend this presumption.

This shifting of burden to employers and insurance carriers to pay for COVID-19 related illnesses certainly makes it harder for California businesses to reopen. An employee could have been exposed on their Costco run, by a family member or a million other ways. It will be difficult, if not impossible for employers to rebut the presumption.

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