COVID-19 Presumptions

As discussed in "Sullivan on Comp" Section 5.17 Presumption of Injury –– Public Employee in General and Section 5.18 Presumption of Injury –– Public Employee's Covered Condition, the Labor Code contains several presumptions in favor of certain employees. The purpose of these statutes "is to favor a special class of employees whose service is vital to the public interest and whose strenuous work makes them especially vulnerable."

During the COVID-19 outbreak, employees deemed to be essential may continue working while nonessential workers are required to stay home. Executive and legislative efforts have been undertaken to create COVID-19 presumptions for certain workers who have been significantly affected by the outbreak.

California Gov. Gavin Newsom has already signed an executive order providing a temporary presumption for a broad range of workers. Permanent presumptions are still being considered by the Legislature. Therefore, while the forthcoming sections discuss general rules regarding how COVID-19 could be deemed compensable, in most cases, whether a COVID-19 claim is compensable is likely to be decided by a presumption.

Assembly Bill 664

Assembly Bill 664 would create a presumption in favor of the specified workers who are exposed to or contract a communicable disease, including COVID-19. The term "injury" also would include direction to enter quarantine by a health-care professional, public agency or the employer. So, although a compensable injury normally is required for workers' compensation benefits, the bill would authorize benefits simply because covered workers are quarantined as a result of exposure, even if they don't contract COVID-19. The presumption would apply to a communicable disease on or after Jan. 1, 2020.

The proposal covers normal workers' compensation benefits including hospital, surgical, medical treatment, disability indemnity and death benefits. It also includes benefits that normally may not be covered. Specifically, it would reimburse for personal protective equipment and "reasonable medical expenses for the protection from or treatment of the injury." It's unclear exactly what that means, but it appears to include preventive medicine. Also covered would be reasonable living expenses, other than temporary housing, that exceed the living expenses usually incurred by the person that are a direct result of the injury. A person is not required to have entered quarantine in order to be reimbursed for such expenses. If quarantined, the employee also must be reimbursed for reasonable temporary housing costs.

The proposed presumption would be conclusive. Once the required conditions are established, it would not be rebuttable by any evidence. Furthermore, the presumption would extend for 90 days following termination of service, commencing with the last date actually worked in the specified capacity.

The intent of the amendments to the bill is clear –– "to fully compensate the peace officers, firefighters, and health care employees whose lives are placed at risk when they are exposed to or contract COVID-19 or other communicable diseases in the course of performing their duties." The language further specifies that the covered employees should not be required to use their accrued vacation leave, personal leave, compensatory leave, sick leave or any other leave.

The proposed bill would also amend Labor Code § 4663(e) to include the COVID-19 presumption as one to which apportionment under that statute would not apply. So, even if an employee has a pre-existing lung condition, such as one caused by a smoking habit, if the COVID-19 causes any permanent impairment, the employee would be entitled to the full value of permanent disability without apportionment.

The proposed bill has not been passed by the Legislature. It's likely that other bills will be introduced to cover other essential workers, such as grocery and mass transit workers. In the meantime, the debate rages on over the prudence of this bill. The WCIRB has created a page for COVID-19 that, among other things, reports on the prospective cost of the presumption. It's found at https://www.wcirb.com/covid-19. A recent webinar and report (which acknowledged some huge assumptions) estimated about a 60% increase in costs to the system should the presumption be adopted.