COVID-19 Workers’ Comp Order Explained

In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and workers’ compensation attorney Tiffany Boyland of Michael Sullivan & Associates LLP discuss Governor Gavin Newsom’s recent executive order that created a rebuttable presumption for workers claiming to have contracted COVID-19 in the workplace and seeking workers’ compensation benefits.

What Is Workers’ Compensation?

Workers’ compensation is a no-fault insurance system that provides medical and wage benefits to employees who are injured at work.

For example, Boyland says, if an employee has a stroke at work, falls down and breaks an arm, the stroke might not be covered under workers’ compensation insurance, but the arm fracture would be covered.

In a workers’ compensation claim, the injured worker is known as the “applicant” and the “defendant” is the employer, Boyland explains.

Normally, the injured party has to prove the injury arose out of something in the workplace, Frank says, and the employer has 90 days to respond to claims.

Executive Order

On May 6, Governor Newsom issued an executive order that granted a time-limited rebuttable presumption for workers who claim to have contracted COVID-19 at work and seek workers’ compensation benefits.

“Rebuttable presumption” means that the claim is taken to be true unless the employer is able to prove the employee contracted COVID-19 outside of work, Boyland explains. In a typical workers’ compensation claim, the employer has 90 days to investigate the claim, but under the executive order, employers will have only 30 days to investigate COVID-19-related claims.

The executive order is problematic in a number of ways. Frank points out that given that COVID-19 is highly communicable, how can anyone prove or disprove that it was contracted at work?

Boyland agrees on the difficulty of proving where the worker contracted COVID-19, adding that the common cold and flu also are highly communicable and that is why neither is covered under workers’ compensation.

Also problematic is the new 30-day (instead of the typical 90-day) discovery window to disprove claims. Scheduling a deposition alone typically takes around 30 days, Boyland says. And on top of that, medical records need to be requested, other records may need to be subpoenaed, and all evidence must be reviewed.

“It’s challenging to get that done in 90 days. I can’t really fathom it in a 30-day timeframe,” she tells Frank.

Boyland adds that it will be difficult for employers to overcome the presumption set forth by the executive order, especially if multiple employees become ill at the same workplace. Moreover, in some work environments, such as those with medical workers or first responders, it’s going to be a “foregone conclusion,” Boyland says.

The order is temporary, applying to claims filed between March 19, 2020 to July 5, 2020, Boyland tells Frank.