Workers' Compensation COVID Guide - 2020 -
- Would a claim for COVID-19 be considered a compensable occupational disease injury under the Workers’ Compensation Act?
While the compensability of an infection with COVID-19 is decided on a case by case basis, Executive Orders and the more recently signed SB 1159 created for some employees an expanded presumption that COVID-19 caused illness or death qualifies for workers’ compensation benefits, and it eliminated that presumption for other employees.
On May 6, 2020, Governor Newsom signed Executive Order N-62-20 putting in place a rebuttable presumption that workers who contract COVID-19 while working outside of their home during the Stay at Home order of March 19, 2020, are entitled to workers’ compensation benefits. The presumption applies if an employee tests positive for or is diagnosed with COVID-19 within 14 days of performing labor or services at the employee’s place of employment at the employer’s direction. The exposure at work must occur on or after March 19, 2020, and the diagnosis must be made within 14 days of the work. The place of employment cannot be the employee’s home or residence. The presumption applies if there is a diagnosis of COVID-19 made by a physician and it is confirmed by further testing within 30 days of the date of the diagnosis. A positive antibody test may confirm the diagnosis, if a COVID-19 test could not be undertaken by the employee while still ill. The physician must hold a physician or surgical license issued by the California Medical Board which does not include pharmacists, chiropractors or acupuncturists. The presumption will apply to diagnoses that are made within 60 days of the order.
The presumption is not conclusive and can be rebutted or controverted by other evidence, i.e., evidence that the employee was exposed at home or from a non-work related source. However, the employer has 30 days, instead of the typical 90 days under Labor Code Section 5402, to deny the claim after receipt of the DWC-1 Claim Form. If the employer fails to deny the claim within 30 days of receipt of the Claim Form, the illness will be presumed compensable, unless rebutted by evidence only discovered subsequent to the 30 day period to investigate. If the claim is presumed compensable or is accepted as an industrial injury, the ill employee is eligible for all workers’ compensation benefits including medical treatment, hospitalization, disability indemnity, and death benefits though permanent disability is still subject to apportionment.
Senate Bill 1159 was enrolled on September 4, 2020 and codifies Governor Newsom’s Executive Order N-62-20 with significant additions. It terminates the presumption for non-frontline workers, but it adds a new classification of workers who will qualify by virtue of an outbreak in their workplace.
Unlike the executive order, SB 1159 does not treat all employees or employers the same. For those employees not specifically identified in the new Labor Code Sections 3212.87 or 3212.88 (all section references hereafter are to the California Labor Code), an employee seeking to qualify for the presumption must have tested positive for or have been diagnosed with COVID-19 within 14 days after working at the employer’s direction at the place of employment (excluding the employee’s home) between March 19, 2020 and July 5, 2020. Carried over from the governor’s executive action is the provision that the employer has 30 days from the filing of the notice of claim to accept or deny the claim. If the claim is not denied within that time limit, the presumption of injury is then rebuttable “only by evidence discovered subsequent to the 30-day period.” Section 3212.86(f).
Section 3212.87 extends the presumption of compensable illness to certain firefighters, peace officers, fire and rescue coordinators, health facility workers who provide direct patient care or are custodial workers at the health facility, registered nurses, medical technicians, providers of in-home supportive services, and employees who provide direct patient care for a home health agency- as each of these is defined in the code. These employees must test positive within 14 days after the employee worked at the employer’s direction at the place of employment on or after July 6, 2020. Again, for these employees the presumption is disputable, but if liability is not rejected within 30 days it may be rebutted only with evidence discovered after the first 30 days. For purposes of this section testing “means a PCR (Polymerase Chain Reaction) test” and does not include antibody testing. Further, except for a provider of home supportive services, the place of employment excludes the employee’s home or residence.
The new class of employees for whom a presumption is available is defined by section 3212.88 as follows: for those employees not covered by section 3212.87, a presumption of compensability will arise if they “test positive during an outbreak at the employee’s specific place of employment, and the employer has 5 or more employees.” An outbreak exists if within a continuous 14 days 4 employees test positive for COVID-19 by PCR test (not an antibody test) and the employer has 100 or fewer employees or if 4 percent of the employees who reported to the specific place of employment test positive and the employer has more than 100 employees. An outbreak also will be attributed to an employer when a place of employment is ordered to close by a local or state health department, school superintendent or by OSHA due to a risk of infection by COVID-19.
To qualify for the presumption of a compensable infection during an outbreak an employee must test positive during the outbreak at the place of employment after July 6, 2020 and within 14 days of having worked there at the employer’s direction. For this class of employees, the employer has 45 days from the date the claim form is filed within which to make a decision on compensability. If the claim is denied or no decision is made timely, the presumption that arises is disputable by evidence that may include “measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.” The presumption applies to all pending matters but is not a basis to reopen a final award of the WCAB.
What is the jurisdictional rationale that makes the claim compensable? Provide all rules that would apply to make the claim compensable.
California law requires that an occupational illness arise out of and occur in the course of the employment (AOE/COE) to be a compensable event. In the case of a communicable disease found in the community-at-large a body of case law has arisen holding that AOE/COE may be proved if the employee’s risk of contracting the pathogen from employment is medically probable or materially greater than from the general public. In South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (Clark) 61 Cal.4th 291, 297, a case involving an illness acquired from a soil spore commonly found in Southern California, Coccidioides immitis (the pathogen causing Valley Fever or coccidiomycosis), the Board explained what it deems necessary to link the disease to the employment. “In regard to industrial causation of a disease, the employee’s risk of contracting the disease from the employment must be materially greater than the general public or more common at the place of employment than among the public.” In contrast, in Abernathy v. Harris Wolf California Almonds, 2015 Cal. Wrk. Comp. P.D. LEXIS 571, the WCAB found a medical opinion on which the claimant relied did not sufficiently address when and where Applicant most likely contracted Valley Fever within reasonable medical probability, as he stated that Applicant could have been exposed at his current employment, prior employment, or where he lived, and did not assess whether the risk of Applicant contracting Valley Fever was made materially greater by his employment. The WCAB concluded that while Applicants are not required to establish medical certainty, they are required to establish that the employment caused or contributed to their coccidiomycosis to a reasonable medical probability.
At the time Governor Newsome issued Executive Order N-62-20 creating a limited presumption of compensability for COVID-19 illnesses, he explained that his authority to act was necessary as “under the provisions of Government Code section 8571, I find that strict compliance with various statutes and regulations specified in this Order would prevent, hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19 pandemic.”
If the employee is directed by the employer to quarantine due to possible exposure at work (and the employer is continuing full salary for 14 days), does the employer’s direction make the claim compensable under the Workers’ Compensation Act?
To be entitled to workers’ compensation benefits the Applicant must establish he/she suffered an industrial injury or illness AOE/COE. In the absence of a diagnosed illness, there can be no industrial injury for which benefits would be payable. An employee ordered to take paid time off without a diagnosis of COVID-19 should not be deemed to have suffered an industrially related injury or illness.
Are “first responders” considered at greater risk than the general public under the Workers’ Compensation Act?
Labor Code Section 3212.87 extends the presumption of compensable illness to certain firefighters, peace officers, fire and rescue coordinators, health facility workers who provide direct patient care or are custodial workers at the health facility, registered nurses, medical technicians, providers of in-home supportive services, and employees who provide direct patient care for a home health agency- as each of these is defined in the code.
Is “Pharmacy” considered a first responder under the Workers’ Compensation Act?
There is no law that identifies a pharmacy or pharmacist as a “first responder” nor does any law provide any additional workers’ compensation presumption in favor of compensability for a pharmacy worker.
Is the state calling for legislation that would eliminate the burden of proof for workers making a COVID-19 occupational disease claim? If so, please provide summary of what is being proposed.
No bills are pending in the 2021 session of the California legislature that would affect the burden of proof for establishing COVID-19 illness as an occupational illness.
Has the state governor issued an executive order allowing for COVID-19 cases compensable under the Workers’ Compensation Act? If so, please provide copy of the executive order.
See answer to #1., above. A copy of the Order is attached here as well.
If COVID-19 claims are compensable under the Workers’ Compensation Act, is the waiting period waived?
If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits are payable. However, if an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4850 benefits, if applicable, from the date of disability. There shall not be a waiting period for temporary disability benefits.
If the claim is compensable under the Workers’ Compensations Act and the Employer pays the employee their full salary for the first two weeks during quarantine, how does this affect the TTD benefits?
Labor Code Section 4650 provides that “If an injury causes temporary disability, the first payment of temporary disability indemnity shall be made not later than 14 days after knowledge of the injury and disability, on which date all indemnity then due shall be paid . . .” Disability is the concurrence of inability to work as a result of industrial injury and loss of earnings. Since the salary continuation in such a case is in lieu of temporary disability benefits the courts would be expected to hold that the salary continuation was paid during the waiting period and that all benefits due thereafter would immediately continue without further delay. The employer’s payment would not delay the right to receive workers’ compensation temporary disability benefit, but would likely be treated as an employee benefit in lieu of temporary disability.
Additionally, if an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits, benefits are payable.
Can the TTD benefits start be delayed if the employee’s disability extends beyond 14 days if the employee receives their full salary for the first two weeks?
The right to receive temporary disability benefits arises on the first day of lost salary due to a compensable injury. The waiting period is a delay in the payment, not a delay in the right to the benefit. Therefore, the employer’s payment of salary during the first 14 days of lost time is in lieu of temporary disability benefits and not a delay in the right to collect the temporary disability benefit. As soon as the salary ends, the temporary disability would commence, if the employee remains incapable of returning to paid work on the 15th day.
Can the TTD benefits be offset by the full salaried paid to the employee?
Yes, temporary total disability benefits (TTD) are payable when there is a loss of income due to a compensable injury within the time limits imposed by law. When the employer pays salary during a period of lost time due to an industrial injury, there is no loss of wages for which TTD is payable. Additionally, If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits, benefits are payable.
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