Is COVID-19 covered by California workers’ compensation?
Healthcare workers, first responders and certain other workers with COVID-19 are presumed to have contracted the illness on the job.
California workers’ compensation covers individuals who get hurt on the job through an injury or illness. Proving that an injury occurred at work after a traumatic event like a fall or chemical burn is much easier than proving an illness was work-related, especially when it is something that could occur outside of the workplace.
About six months into the current pandemic, less than three percent of the millions of Californians afflicted with COVID-19 filed workers’ compensation claims, believing their infection was acquired at work. Yet of those claims, over one-fourth were denied by employers and their workers’ compensation insurance carriers. Governor Newsom quickly sprang into action with an expansive executive order that extended workers’ comp benefits to all employees with COVID-19. After that EO expired, the legislature stepped in, but they restricted the reach of the presumption that a person contracted COVID-19 at work.
Today, infected workers in certain categories benefit from a presumption that they contracted COVID-19 at work, while others have a harder time proving the connection between their illness and their employment. In either case, however, it is possible to get workers’ compensation benefits if you caught COVID-19 at work and had to miss work due to your illness. The benefits you can get are Temporary Disability benefits, although you might first be required to exhaust any accumulated paid sick leave or other benefits available under the Families First Coronavirus Response Act or company policy.
History of “the presumption”
On May 6, 2020, Governor Newsom signed Executive Order N-62-20, which boldly declared that “any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits.” So long as you contracted the virus within 14 days of working outside the home, this presumption would apply, meaning you wouldn’t have to produce any other evidence linking the coronavirus to the workplace.
Unfortunately, this EO expired on July 5 and only covered workers who became ill between March 19 and July 5 of 2020. In response, the California legislature stepped in with SB1159, which was signed into law on September 17 and became effective immediately, covering employees back to July 6 when the EO expired.
SB1159 codified the COVID-19 presumption into law but with significant limitations compared to the expired EO. Instead of covering all workers, the presumption as it now stands only applies to healthcare workers, first responders, and employees who test positive for COVID-19 amid an outbreak in their workplace. An outbreak is defined as four employees testing positive in a workplace with up to 100 employees (minimum of five) or four percent of employees testing positive in a workplace that has more than 100 employees.
The presumption is only a presumption
The presumption for covered workers that they contracted COVID-19 at work is rebuttable. This means the employer could introduce evidence that the worker caught the virus someplace else such as a sporting event, worship service, political rally or other mass gathering. Employers who wish to challenge the presumption only have 30 days in the case of healthcare workers and first responders or 45 days in the case of employees who get COVID-19 during an outbreak at work. This timeframe to accept or reject a claim is one-half or one-third the normal 90-day timeline that applies to workers’ compensation claims in general.
Without using measures such as contact tracing, it can be hard for employers to overcome the presumption, but that doesn’t mean they won’t try. Employees should be prepared for their employers to dispute the presumption and should contact an attorney to argue their side of the case.
You could still get workers’ comp for COVID-19 even without the presumption
Contracting an illness at work is compensable under California workers’ compensation, regardless of whether the disease is COVID-19 or something else specific to your job like contact dermatitis, COPD, asthma or carpal tunnel syndrome. As with any occupational illness, an employee who comes down with COVID-19 at work can get workers’ comp benefits to cover medical bills and time off from work, but they have to prove the illness was work-related. Without the presumption, they would have to present compelling evidence, such as evidence of ill co-workers, a lack of PPE and other safety measures in the workplace, and evidence showing they took care not to get infected with the coronavirus elsewhere. Getting benefits without the advantage of the presumption is certainly harder, but it’s not impossible. A workers’ comp lawyer can help prove your claim.
