COVID-19 Presumptions

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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 enumerates 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. California's executive and legislative branches have created COVID-19 presumptions for certain workers who have been significantly affected by the outbreak.

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

EXECUTIVE ORDER N-62-20

On May 6, 2020, Gov. Newsom issued an executive order creating a temporary workers' compensation presumption for employees diagnosed with COVID-19. The governor explained that the executive order was signed to "remov[e] a burden for workers on the front lines, who risk their own health and safety to deliver critical services to our fellow Californians so that they can access benefits, and be able to focus on their recovery."

The presumption is retroactive to the date of the stay-at-home order and will remain in effect for 60 days after its effective date. So the presumption is effective for employees working from March 19, 2020 through July 5, 2020.

Under the executive order, any illness related to COVID-19 is presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if:

1. The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that he or she performed labor or services at the employee’s place of employment at the employer’s direction.
2. The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020.
3. The employee’s place of employment was not the employee’s home or residence. And,
4. The diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board, and that diagnosis is confirmed by further testing within 30 days.

So, the presumption covers any employees who must work outside of their homes during the stay-at-home order at the employer’s direction. All essential workers who were required to report to work are covered, but the presumption also covers any nonessential workers who performed "labor or services at the employee’s place of employment at the employer’s direction." The presumption would not cover employees who went to their place of employment without their employer's direction.

The diagnosis must be confirmed by a test. There are two types of tests generally available: (1) a viral test, which determines if a person has a current infection; and (2) an antibody test, which determines if a person had a previous infection. The executive order doesn't limit the type of test that may be used to confirm the diagnosis. So, an employee who recovered from COVID-19 potentially could bring a claim for any benefits related to the infection using an antibody test provided that the positive test was obtained within 30 days of the initial diagnosis.

The presumption is rebuttable and may be controverted by "other evidence." So, under the executive order, an employer could rebut the presumption with any evidence that the employee contracted COVID-19 outside of the employment.

The executive order requires that a decision denying a claim for an presumptively compensable illness related to COVID-19 be made within 30 days after the date the claim form is filed. This shortens the time period for denial of a COVID-19 claim from the normal 90 days provided under Labor Code § 5402 (see "Sullivan on Comp" Section 5.16 Presumption of Injury –– 90-Day Rule). Until the employer makes a decision, an employee will be eligible for as much as $10,000 in medical treatment for illness related to COVID-19.

The order also says that if a claim is not denied within this time period, it is presumed compensable, unless rebutted by evidence discovered only subsequent to the 30-day period. That probably would preclude an employer rebutting the presumption with evidence that could have been obtained with the exercise of reasonable diligence within the 30-day period.

An employer that denied a claim prior to the executive order is not automatically required to reverse its decision. The employer may reconsider and accept the claim based on the order or stand by the denial.

An accepted claim for the illness related to COVID-19 is eligible for all benefits applicable under the workers’ compensation laws of this state, including full hospital, surgical, medical treatment, disability indemnity and death benefits. The executive order covers only regular workers' compensation benefits. It does not authorize reimbursement for the personal protective equipment or temporary housing proposed by other bills being considered in the Legislature.

The executive order states that illness related to COVID-19 "shall be subject to those laws including Labor Code sections 4663 and 4664, except as otherwise provided in this Order." Those statutes relate to apportionment of permanent disability, and, therefore, permanent disability related to COVID-19 is apportionable to other causes (see "Sullivan on Comp" Section 10.34 Apportionment –– Pre-Existing Disease or Condition).

The order also provides that if an employee has paid sick leave benefits specifically available in response to COVID-19, they should be used and exhausted before any temporary disability benefits or benefits under LC 4850 are due and payable. So if an employer specifically provided sick leave benefits in response to COVID-19, such as under the Families First Coronavirus Response Act or Executive Order N-51-20, such benefits must be exhausted before temporary disability or § 4850 benefits are payable. An employee is not required to use his or her normal sick leave benefits. If an employee does not have such sick leave benefits, he or she must be provided temporary disability benefits or § 4850 benefits, if applicable, from the date of disability. The executive order eliminates the three-day waiting period for temporary disability benefits under § 4652 (see "Sullivan on Comp" Section 9.16 Waiting Period).

Nevertheless, to qualify for temporary disability benefits or benefits under LC 4850, an employee must satisfy either of these requirements:

• If the employee tests positive or is diagnosed on or after May 6, 2020, he or she must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis. Or,
• If the employee tested positive or was diagnosed prior to May 6, 2020, the employee must obtain a certification, within 15 days of the date of the order, documenting the period for which he or she was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.

So being diagnosed with COVID-19 does not automatically entitle an employee to temporary disability benefits. The worker still must be certified for temporary disability by a physician licensed by the California Medical Board. The certifying physician may be a designated workers’ compensation physician in an applicable medical provider network or health-care organization, a predesignated workers’ compensation physician or a physician in the employee’s group health plan. If the employee does not have a designated workers’ compensation physician or group health plan, he or she should be certified by a physician of the employee’s choosing who holds a physician and surgeon license. For further discussion on liability for temporary disability, see "Sullivan on Comp" Chapter 9: Temporary Disability.

Finally, the executive order states that the Department of Industrial Relations (DIR) must waive collection on any death benefit payment due pursuant to LC 4706.5 arising out of claims covered by the order. That statute generally directs that if an employee dies without leaving any person entitled to a dependency death benefit, the employer is required to pay death benefits to the DIR (see "Sullivan on Comp" Section 12.24 Payment to State –– No Dependent).

The administrative director is given authority to adopt, amend or repeal any regulations deemed necessary to implement the order. Any regulations promulgated by the AD will be exempt from the Administrative Procedures Act. But the director must submit the regulations to the Office of Administrative Law for publication in the California Regulatory Notice Register.

Th DIR answers questions regarding the executive order at: https://www.dir.ca.gov/dwc/Covid-19/FAQs.html. The executive order is available at: https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.

SENATE BILL 1159

Senate Bill 1159 would codify the presumption from the governor’s executive order of May 6, 2020 into new Labor Code § 3212.86. The bill codifies the executive order only for the period in which it is valid. The bill also would add Labor Code § 3212.87, which creates a separate presumption for specified firefighters, peace officers and medical personnel.

Proposed LC 3212.88 states, "It is the intent of the Legislature to develop policies and procedures to create a disputable workers’ compensation presumption for employees who are diagnosed with COVID-19 as a part of an outbreak at a specific place of employment. It is also the intent of the Legislature that the outbreak presumption shall minimize frictional costs, medical treatment delays, and uncertainty for injured employees and their families."

The text of SB 1159 is available on the California Legislative Information website.

Codification of Executive Order

Like the executive order, SB 1159 creates a presumption that potentially applies to "any employee with a COVID-19-related illness." Per SB 1159, the term "injury" includes illness or death resulting from COVID-19 if all of these circumstances apply:

1. The employee has tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction. For these purposes, an "employee’s place of employment" does not include an employee’s home or residence.
2. The day referenced in No. 1 when the employee performed labor or services was on or after March 19, 2020, and on or before July 5, 2020. The date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction.
3. If No. 1 is satisfied through a diagnosis of COVID-19, the diagnosis must be done by a physician who holds a physician's and surgeon's license issued by the California Medical Board and the diagnosis must be confirmed by further testing within 30 days of the date of the diagnosis.

Compensation awarded for injury under the bill includes full hospital, surgical, medical treatment, disability indemnity and death benefits. An accepted claim for an illness related to COVID-19 will be subject to the workers’ compensation laws of this state, including LC 4663 and LC 4664.

If an employee has paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits or benefits under LC 4850 are due and payable. If an employee does not have those sick leave benefits, he or she must be provided temporary disability benefits or § 4800, § 4800.5 or § 4850 benefits, if applicable, from the date of injury, with no waiting period for temporary disability benefits.

To qualify for temporary disability or § 4800, § 4800.5 or § 4850 benefits under the bill, an employee must satisfy either of these:

1. If the employee has tested positive or is diagnosed with COVID-19 on or after May 6, 2020, she or he must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
2. If the employee has tested positive or was diagnosed with COVID-19 before May 6, 2020, she or he must have obtained a certification, no later than May 21, 2020, documenting the period the worker was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.

The worker still must be certified for temporary disability by a physician holding a physician's and surgeon's license. If the employee has a predesignated physician per LC 4600, is covered by a medical provider network per LC 4616 et seq., is covered by a workers’ compensation health-care organization per LC 4600 et seq., or is covered by a group health plan, the certifying physician must be a physician and surgeon in that network, organization or plan. Otherwise, the certifying physician may be a licensed physician/surgeon of the employee’s choosing.

An injury that satisfies the conditions of the presumption is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.

In addition, if liability for a claim of illness related to COVID-19 is not rejected within 30 days after the date the claim form is filed per LC 5401, the illness must be presumed compensable. This presumption may be rebutted only by evidence discovered only after the 30-day period.

The Department of Industrial Relations also will waive the right to collect any death benefit payment due pursuant to LC 4706.5 arising out of claims covered by this section.

This bill applies to all pending matters, unless otherwise specified, but is not a basis to rescind, alter, amend or reopen any final award of workers’ compensation benefits. The bill establishes a repeal date of Jan. 1, 2024.

Presumption for Firefighters, Peace Officers and Medical Personnel

In addition to codifying the governor’s executive order, Senate Bill 1159 also would add LC 3212.87, a presumption covering specified employees beyond July 5, 2020. It would cover:

1. active firefighting members, whether volunteers, partly or fully paid, within all of these fire departments:
   1. a fire department of a city, county, city and county, district or other public or municipal corporation or political subdivision;
   2. a fire department of the University of California and the California State University;
   3. the Department of Forestry and Fire Protection (CAL FIRE);
   4. a county forestry or firefighting department or unit.
2. active firefighting members of a department that serves a U.S. Department of Defense installation and who are certified by that department as meeting its standards for firefighters;
3. active firefighting members of a department that serves a National Aeronautics and Space Administration installation and who adhere to specified training standards;
4. active firefighting members of a department that provides fire protection to a commercial airport regulated by the Federal Aviation Administration (FAA) and are trained and certified by the State Fire Marshal pursuant to specified standards;
5. specified peace officers, who are primarily engaged in active law enforcement activities;
6. fire and rescue services coordinators who work for the Office of Emergency Services;
7. a nurse or physician who provides direct patient care, or a custodial employee in contact with COVID-19 patients, who works at a health facility;
8. an authorized registered nurse, emergency medical technician-I, emergency medical technician-II or emergency medical technician-paramedic.

For these employees, the term "injury" includes illness or death resulting from COVID-19 if all of these circumstances apply:

1. The employee has tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction. For these purposes, an "employee’s place of employment" does not include an employee’s home or residence.
2. The day referenced in No. 1 when the employee performed labor or services was on or after July 6, 2020. The date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction.
3. If No. 1 is satisfied through a diagnosis of COVID-19, the diagnosis must be done by a physician who holds a physician's and surgeon's license issued by the California Medical Board, and the diagnosis must confirmed by further testing within 30 days of the date of the diagnosis.

Otherwise, the same conditions defined in the governor’s executive order and proposed LC 3212.86 apply. Specifically, the presumption may be rebutted by other evidence. The employer has only 30 days from the filing of the claim form to reject the claim before the illness becomes presumed compensable.

Compensation for a covered injury includes full hospital, surgical, medical treatment, disability indemnity and death benefits. An accepted claim for illness related to COVID-19 will be subject to the workers’ compensation laws of this state, § 4663 and § 4664.

If an employee has paid sick leave benefits specifically available in response to COVID-19, they must be used and exhausted before any temporary disability benefits or benefits under LC 4800, LC 4800.5 or LC 4850 are due and payable. Temporary disability must be certified for temporary disability by a physician holding a physician’s and surgeon’s license.

Labor Code § 3212.87 would remain in effect until July 1, 2024, and as of that date would be repealed.

ASSEMBLY BILL 664

Assembly Bill 664 would create a presumption in favor of specified workers who are diagnosed with a communicable disease, including COVID-19. Also, it would establish safety practices for all employers.

Proposed Labor Code Section 3212.18 would apply to:

1. active firefighting members, whether volunteers, partly or fully paid, within all of these departments:
   1. a fire department of a city, county, city and county, district or other public or municipal corporation or political subdivision;
   2. a fire department of the University of California and the California State University;
   3. the Department of Forestry and Fire Protection (CAL FIRE);
   4. a county forestry or firefighting department or unit.
2. peace officers, as defined in Penal Code § 830;
3. health-care employees who provide direct patient care in an acute care hospital, as defined in Health and Safety Code § 1250(a) or (b);
4. fire and rescue services coordinators who work for the Office of Emergency Services;
5. active firefighting members of a department that serves a U.S. Department of Defense installation and who are certified by the U.S. Department of Defense as meeting its standards for firefighters;
6. active firefighting members of a department that serves a National Aeronautics and Space Administration installation and who adhere to specified training standards;
7. active firefighting members of a department that provides 24-hour fire protection to a passenger-carrying operation at a commercial airport regulated by the Federal Aviation Administration (FAA) and are trained and certified by the State Fire Marshal as meeting the specified standards.

For these specified employees, the term "injury" includes diagnosis of a communicable disease, including COVID-19, that occurs on or after Jan. 1, 2020, and is the subject of a state public health emergency that is declared on or after Jan. 1, 2020. It specifies that the injury may occur prior to the declaration of the state of emergency.

The proposal covers normal workers' compensation benefits including hospital, surgical, medical treatment, disability indemnity and death benefits. The proposed presumption would be disputable by other evidence. The presumption would be extended to a covered employee following termination of service for a period of 30 days, commencing with the last date actually worked in the specified capacity.

The intent of the bill is "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." To that end, the bill would declare that both of these policies and goals should be implemented:

1. An employee who is ordered to quarantine should be provided housing or reimbursed for living expenses.
2. An employee who is directed to quarantine by the employer, a licensed health-care professional, a public health officer or agency, should be provided paid leave and should not be required to use the employee’s accrued vacation leave, personal leave, compensatory leave, sick leave or any other leave.

The proposed bill also would amend LC 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.

In addition, AB 664 would amend LC 6401 to add a provision stating, "Every employer shall provide or reimburse an employee for emergency equipment or personal protective equipment (PPE) that provides or is ancillary to other emergency equipment or PPE that provides protection from injury for the employee." It also would amend LC 6403 to state that no employer should fail or neglect "To provide or reimburse an employee for emergency equipment or personal protective equipment (PPE) that provides or is ancillary to other emergency equipment or PPE that provides protection from injury for the employee." The amendments specify that violations of these statutes would not be a violation of LC 6423.

If adopted in its current form, Assembly Bill 664 would be considered an urgency statute and would go into effect immediately upon signing. The text of the bill 664 is available on the California Legislative Information website at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB664.

ASSEMBLY BILL 196

Assembly Bill 196 would create a conclusive presumption for essential employees not otherwise covered by AB 664. The bill would apply to injuries occurring on or after March 1, 2020, and would extend that presumption following termination of service for a period of 90 days, commencing with the last date actually worked.

Other than those covered by AB 664, employees generally covered by AB 196 are workers employed in an occupation or industry deemed essential in the governor’s executive order of March 19, 2020 (Executive Order N-33-20), or those subsequently deemed essential.

The compensation awarded for an injury covered by the presumption includes full hospital, surgical, medical treatment, disability indemnity and death benefits. Unlike other bills, the injury "so developing or manifesting itself shall be conclusively presumed to arise out of and in the course of employment." So, Assembly Bill 196 would create a conclusive, rather than rebuttable presumption.

The presumption would be extended to the employee following termination of service for a period of 90 days, commencing with the last date actually worked. It would apply to injuries occurring on or after March 1, 2020.

The text of AB 196 is available on the California Legislative Information website at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB196.

SENATE BILL 893

Senate Bill 893 would create a presumption for hospital employees who provide direct patient care in an acute care hospital, to include infectious diseases, musculoskeletal injuries and respiratory diseases. The bill originally was introduced to cover infectious diseases and musculoskeletal injuries but was amended to include respiratory diseases after the COVID-19 outbreak.

The bill states, "Frontline nurses treating patients with COVID-19 are likely exposed to the highest risk of infection because of their close, frequent contact with patients and longer than usual working hours. By the nature of their profession, health care workers in California are in daily danger of direct exposure to all infectious diseases, including COVID-19." Mindful of that reality, the bill states, "Because health care workers have significantly increased exposure or susceptibility to particular work-related injuries or illnesses, it is appropriate to protect them by guaranteeing access to the workers’ compensation system."

The bill would adopt three new statutes:

1. Labor Code 3212.13 would cover infectious diseases.
2. Labor Code 3212.14 would cover musculoskeletal injuries.
3. Labor Code 3212.145 would cover respiratory diseases.

"Infectious disease" is defined as including "infectious diseases caused by novel pathogens, such as novel coronavirus (COVID-19)." “Musculoskeletal injury” is defined as "acute injury or cumulative trauma of the muscles, tendons, ligaments, bursas, peripheral nerves, joints, bones, or blood vessels." “Respiratory disease” is defined as including "chronic obstructive pulmonary disease, asthma, novel coronavirus (COVID-19), and other respiratory diseases caused by novel pathogens."

Under those statutes, an infectious disease, musculoskeletal injury or respiratory disease that develops or manifests in a hospital employee who provides direct patient care in an acute care hospital would be presumed to arise out of and in the course of the employment.

The presumptions would be rebuttable by "other evidence." The bill does not limit the evidence that may be used to rebut the presumptions. Unless controverted, the appeals board is bound to find in accordance with the presumption.

The text of Senate Bill 893 is available on the California Legislative Information website at: http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB893.

ASSEMBLY BILL 2447

Assembly Bill 2447 would establish a presumption that post-traumatic stress is compensable for a person employed by a private sector agency that's contracted by a state, local, tribal or special district to provide emergency medical services. Notably, the presumption as currently written does not cover public sector emergency medical services personnel. It also applies only to injuries occurring on or after Jan. 1, 2021. So it wouldn't cover workers currently treating COVID-19 patients who file claims before Jan. 1, 2021.

This presumption is rebuttable and may be controverted by "other evidence," without limitation. Furthermore, the presumption would not apply unless the employee was employed for at least six months, although the six months of employment need not be continuous.

The text of Assembly Bill 2447 is available on the California Legislative Information website at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB2447.

SEE ALSO

• When Is COVID-19 Work Related?
• The Basic Rule — Increased Risk and the General Public

REFERENCES

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