Governor Newsom Issues Executive Order Creating Workers’ Compensation Presumption for Employees Who Contract COVID-19 Related Illnesses in the Workplace on or After March 19, 2020

On May 6, 2020, Governor Newsom issued Executive Order N-62-20 which creates a rebuttable presumption that employees diagnosed with any COVID-19 related illness on or after March 19, 2020 contracted the illness at work, thereby entitling such employees to full workers’ compensation benefits.  This Order applies retroactively to employees who test positive for COVID-19 related illnesses if they worked outside their home from March 19, 2020 through July 5, 2020 —60-days following the May 6, 2020 issuance of the Order.  The Order is broadly phrased so that it covers a COVID-19 diagnosis or diagnosis of a related illness. 

Specifically, the Order provides, “[a]ny COVID-19 related illness of an employee shall be presumed to arise out of and in the course of the employment for the purpose of awarding workers’ compensation benefits” if the following four (4) conditions are satisfied:

1. The employee tested positive or was diagnosed with COVID-19 infection within 14 days after the employee performed work at the employee’s place of employment;
2. The day the employee performed labor or services at the employee’s place of employment at the direction of the employer was on or after March 19, 2020;
3. The employee’s place of employment was not the employee’s home or residence; and
4. If the COVID-19 diagnosis was made without a positive COVID-19 test result, the diagnosis was made by a physician licensed by the California Medical Board, and that diagnosis is confirmed by further testing within 30 days of the diagnosis.

The Order explains that the presumption set forth above is rebuttable “and may be controverted by other evidence.” However, if the employer or other entity presents no evidence to rebut the presumption, then the Order requires the Workers’ Compensation Appeals Board to find an employee’s COVID-19 related illness arose in the course and scope of employment.  The Order provides that this presumption shall apply only for injuries (i.e., COVID-19 related illness) occurring from March 19, 2020 through July 5, 2020.

The Order clarifies that an accepted workers’ compensation claim for COVID-19-related illness is eligible for all workers’ compensation benefits, including “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” Further, there is no waiting period for temporary disability benefits, but an employee who has paid sick leave benefits specifically available in response to COVID-19 must exhaust that paid leave first.

The Executive Order has been in the making for several weeks, with businesses lobbying to curb its breadth, but was finally issued May 6 providing retroactive coverage for COVID-19 related illness. The practical reality of this Order is that any employee who performed work outside the employee’s residence on or after March 19, 2020 who is diagnosed with a test-confirmed COVID-19 illness will be presumed eligible for full workers’ compensation benefits.   Any employers who know employees who have been diagnosed with COVID-19 during this time and were working outside the employee’s residence should provide to the affected worker a DWC-1 Form.

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