After significant lobbying from labor advocates, including MAJ, Governor Newsom issued an executive order this week creating a workers' compensation presumption for employees who contract "any COVID-19-related illness." This is a significant development for first responders who, as they serve the public, have been exposing themselves to the novel coronavirus for months without any assurance that they will be compensated if they become ill. Employees who qualify for the presumption will be more likely to receive medical care and disability payments through the workers' compensation system.

Similar to presumptions already existing in statute, this new presumption is both qualified and rebuttable. Employees will be eligible for the presumption if they test positive for or are diagnosed with a COVID-19-related illness within fourteen (14) days after "a day that the employee performed labor or services at the employee's place of employment at the employer's direction." The day that work was performed must be on or after March 19, 2020 (the date of the Governor's Stay At Home Order) and the employees' place of employment cannot be their home or residence.

Based on the language of the order, the presumption would likely not apply to an employee who is permitted or directed to work from home and who nevertheless performs work at a non-home job site without any direction by the employer. An employee who becomes ill under these circumstances must follow the standard rules for proving that they incurred the illness in the course of their work.

As with other presumptions, even if an employee's illness qualifies for the presumption, an employer may rebut the presumption with relevant evidence. This includes evidence that the employee likely contracted the virus from a family member or other person outside of the employee's line of work.

Additionally, Governor Newsom included multiple concessions to business groups in his executive order. First, unlike statutory presumptions, this presumption is temporary. The presumption only applies to an injury/illness incurred within 60 days after the order (i.e., July 5, 2020). But the order also extends the presumption to all employees, not just first responders and health care workers.

Second, the order requires employees to use all paid sick leave that is “specifically available in response to COVID-19” before they begin receiving temporary disability payments or Labor Code section 4850 leave payments. But the order also eliminates any waiting period for temporary disability benefits that would otherwise apply to a COVID-19-related illness.

The order imposes strict timelines for employees to obtain certification that their injury/illness was a COVID-19-related illness that qualifies for the presumption. Employees who may be eligible for the presumption should immediately contact their workers' compensation medical provider and/or their workers' compensation attorney to arrange to obtain this certification.

Like California, many other states have created or are debating whether to create a presumption for employees who contract the novel coronavirus in the course of their work. In Illinois, employees cheered an administrative agency that created a presumption, only to see a court stop the agency because it exceeded its statutory authority. Therefore, first responders and other employees in California need the Legislature to create a permanent presumption set in statute. MAJ will continue to monitor this and advocate for our clients on this issue.

If you have any questions about this alert, please contact Jason Jasmine or David Kruckenberg.