COVID-19 Is Presumed to Be A Work-Related Injury – What You Should Know
Governor Newsom signed Executive Order N-62-20 this month which provides that under certain circumstances, it is presumed that workers who are diagnosed with COVID-19 between March 19 – July 05, 2020 contracted the illness at work, and are eligible for workers’ compensation benefits. Though this order was only signed this month, it applies to previous claims that may have been made by an employee but denied, if the employee meets the criteria below.
To be eligible for WC benefits there are few requirements that must be met. First, the employee must work outside their home (office, store, site, etc.) during the specified period. In addition, the employee must test positive for COVID-19 within 14 days of the last day worked at the jobsite at his or her employer’s direction, assuming the last day was March 19th or later (i.e. someone who worked March 18th but sheltered-in-place beyond this date at their home with no requirement to come into the office cannot make a workers’ compensation claim for a COVID-19 diagnosis). Please note, this does not apply to employee’s who are headquartered, or whose work address is his or her home. Finally, it is not enough to be diagnosed by a medical doctor alone. If diagnosed, the diagnosis must be confirmed by a positive test for COVID-19 within 30-days of the diagnosis from a medical doctor. There are two separate tests available, one that advises if a person currently has an infection, and one that can test antibodies to tell if an employee had a previous infection.
The eligibility does not depend on whether the employee is considered essential. All employees can apply for benefits under workers’ compensation if diagnosed with COVID-19.
An employer has the option to try to dispute the claim, but the employer has the burden of proving the injury or illness did not occur at work. An employer has only 30-days after the date the claim form is filed for benefits under this Executive Order, which is vastly shortened from the normal 90-day period. However, evidence that is discovered after the 30-day period may be grounds for a later rejection. An employer should be careful to consider how they try to prove this to ensure they are not breaching any privacy laws.
In addition, if an employee was eligible for paid sick leave under Families First Coronavirus Response Act, they will have to use that sick leave prior to transitioning to temporary disability benefits. If an employer does not have any supplemental paid sick leave specifically available in response to COVID-19, temporary disability benefits should be paid to the employee from the time they became disabled. This means that, if an employee took paid leave (sick leave, vacation time, personal time off) through the employer’s plan, that leave should be restored back to the employee.
As employers bring its employees back to work, please be aware of the risk for a workers’ compensation claim if your employee contracts COVID-19. Unfortunately, with several cities and counties lifting restrictions, restaurants, malls and even casinos are open for business and are possible places an employee could contract COVID-19. However, this does not change an employer’s duty to provide Form DWC-1 and submit a claim to its carrier.
We recommend investigating claims of COVID 19 when the employee makes a worker’s compensation claim. Given the short timeline, employers will need to careful work with their claims representative to ensure the illness is work related. Contact McKague Rosasco LLP if you have any questions about investigating these claims or how to handle an outbreak.