EXECUTIVE ORDER N-62-20 was issued by the Governor on May 6, 2020, allowing California employees to receive workers’ compensation benefits for COVID-19-related illnesses. The Executive Order applies to any employee, not just essential healthcare workers or first responders. If you have any questions, concerns, or believe you might have a claim, California Trial Law Group provides free consultations to assist you.
The Order creates a rebuttable presumption of COVID-19 injury that expires on July 5, 2020. Under the Order, COVID-19-related illnesses shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following requirements are satisfied:
1. On or after March 19, 2020, the employee performed labor or services at the employer’s direction;
2. The employee tested positive for or was diagnosed with COVID-19 by a California physician;
3. That diagnosis is made within 14 days after a workday;
4. That workday occurred at the place of employment, not the employee’s home or residence; and
5. If the diagnosis of COVID-19 was made without a contemporaneous positive test result to verify it, that diagnosis must be confirmed by subsequent testing within 30 days of the date of the diagnosis, presumably with an antibody test.
If the above conditions are met and no rebuttable evidence exists, the Workers’ Compensation Appeals Board is required to find that the employee suffered a workplace COVID-19 injury and the illness is presumed compensable. A possible example of rebuttable evidence would be a negative test result that comes in after the 30 days. A claim may be denied if the employer can demonstrate that there was a known non-industrial cause, such as an infected family member or roommate. Individual treatment may also be denied and appealed under the workers’ compensation utilization review/independent medical review process. It is uncertain whether the deadline to file a COVID-19 workers’ compensation injury will be extended as of the time this article was posted.
In addition, the deadline for a workers’ compensation insurance carrier to deny COVID-19 claims is decreased to 30 days from the day “the claim form is filed under Labor Code section 5401,” rather than typical 90 days allowed under Labor Code section 5402. Unless stated otherwise in the Order, COVID-19 claims are subject to established workers’ compensation laws, including apportionment of permanent disability based on causation.
What Benefits Are Available Because of This Presumption?
An accepted claim for the COVID-19-related illness is eligible for all benefits applicable under the California workers’ compensation laws, including full hospital, surgical, medical treatment, disability indemnity, and death benefits.
Do I Have Exhaust Sick Leave or Paid Time Off Through My Employer Before I Can Receive Wage Replacement Benefits Under Workers’ Compensation?
Yes, where an employer has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be exhausted before any wage replacement benefits become payable, including Labor Code section 4850 benefits for police officers, fire fighters, etc. There is no waiting period for temporary disability benefits. However, where an employee does not have such sick leave benefits, an injured worker shall be provided temporary disability wage replacement or Labor Code section 4850 benefits from the date of disability. Presumably, this offset provision does not apply to normal sick leave or accrued paid time off.
How Do I Become Eligible for Temporary Disability Wage Replacement Benefits Under Workers’ Compensation?
To qualify for wage replacement benefits, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be re-certified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis. If the employee tested positive or was diagnosed prior to May 6, 2020, the employee must obtain a certification by May 21, 2020, documenting the period of TD, and must be re-certified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
The temporary disability or 4850 pay must be certified by a physician, including MPN providers, a predesignated physician, or a physician in the employee’s group health plan. If the employee does not have a designated workers’ compensation physician or group health plan, the employee should be certified by a physician of the employee’s choosing who holds a physician and surgeon license.
The death benefit payment that would otherwise be paid to the Department of Industrial Relations’ Death Without Dependents Unit (Labor Code Section 4706.5) arising out of claims covered by this Order will be waived.
Where Can I Get Legal Advice?
If you would like a free consultation regarding workers’ compensation, COVID-19 workers’ compensation injury, or anything related, please contact California Trial Law Group for a free consultation.
Posted in: Workers' Compensation