COVID-19 Client Alerts:
Extensive Workers’ Compensation Expansion Shifts Virus Costs to Employers
Executive Order N-62-20 states that employees who worked at a jobsite outside their home at the direction of their employer between March 19, 2020 and July 5, 2020, and who test positive for COVID-19 within 14 days of working at the site, are presumed to have been infected at work and can pursue a claim through the workers’ compensation system. Specifically, the presumption applies if:
- The employee tests positives for, or is diagnosed with, COVID-19 within 14 days after a day they worked at their employer’s jobsite at its direction.
- The day the employee worked at the employer’s jobsite was on or after March 19, 2020.
- The employer’s jobsite is not the employee’s home or residence.
- If diagnosed with COVID-19, the diagnosis was done by a medical doctor and confirmed by a positive test for COVID-19 within 30 days of the date of the diagnosis.
This is a rebuttable presumption, meaning the employer must prove that the infection did not occur at work if the employer wants to dispute this claim. To date, neither the Governor nor the Department of Industrial Relations has specified what evidence an employer could present to rebut this presumption.
Although not stated, we assume that, if an employee qualifies for the presumption and files a workers’ compensation claim, he or she could also seek a “serious and willful” penalty for the claim, if applicable. A “serious and willful” claim arises when an employee’s workplace injury is caused by the employer’s “serious and willful misconduct.” An employee may argue that an employer’s failure to follow current guidance regarding worker safety and facility cleanliness for COVID-19, for example, was serious and willful misconduct. In such cases, the employer must pay half the value of all workers’ compensation benefits paid, as a penalty. This is uninsurable, so the penalty is paid out of the employer’s own pocket.
Some employers who could reopen are deciding to delay their reopenings until this workers’ compensation rebuttal presumption period expires on July 5, 2020. Employers who are choosing to reopen need to be diligent in following all relevant government guidelines on reopening to minimize the possibility of workplace infection, and also the imposition of a penalty for serious and willful misconduct.
The Department of Industrial Relations FAQ on this Order can be found at: https://www.dir.ca.gov/dwc/Covid-19/FAQs.html
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