Alert / Risk Management
Compensability and presumption of COVID-19 workers’ compensation claims in California

On May 6, 2020, California Gov. Gavin Newsom signed an executive order altering how COVID-19-related worker’s compensation claims would presumptively meet the work-related test. Prior to the order, the burden fell upon the injured employee to prove their exposure to COVID-19 arose out of and in the course of their employment. 

Under the signed executive order, the burden now shifts to the employer to provide rebuttal evidence to prove the exposure was not work related. Exposed California employees will have available the rebuttable presumption if they tested positive or were diagnosed with COVID-19 within 14 days of performing a labor or service at a place of work after the stay-at-home order (issued on March 19, 2020).

Details of the executive order

Background

  • As the COVID-19 pandemic has progressed and a statewide stay-at-home order was issued, employees across a variety of industries were asked to continue reporting to work. 
  • Due to continued exposure outside of the home, these workers are more susceptible to contracting COVID-19.

Executive order

  • Removes burdens of access to workers’ compensation for all employees risking their own health and safety to deliver critical services outside their home during the statewide stay-at-home order.
  • Creates a time-limited emergency workers’ compensation benefit (rebuttable presumption) that COVID-19 was contracted at a workplace.
  • The presumption will stay in place for 60 days after the issuance of the executive order. 
  • After this timeframe, as the stay-at-home order is modified, exposure to the virus is likely to occur in a variety of settings.
  • Following this timeframe, employees could still submit a claim for workers’ compensation for COVID-19, but it would no longer be presumed to have occurred at a workplace.

Key provisions

  • Creates a rebuttable presumption.
  • Shifts the burden of proof from an employee having to prove their injury was work related to the employer having to prove that the injury is NOT work related.
  • Covers all employees required to work outside of their home by their employer while under the statewide stay-at-home order. 
  • Gives the employer 30 days to rebut the claim (employers usually have 90 days to accept or reject a workers’ compensation claim). After 30 days, claim would be deemed accepted. 
  • As allowed under current law, employers have ability introduce new evidence that the injury is not work related even after the claim has been accepted.
  • Requires a positive COVID-19 test or a diagnosis of COVID-19 by a licensed physician or surgeon holding a license issued by the California Medical Board (i.e., not a podiatrist or chiropractor), confirmed by a positive test within 30 days, for a claim to be presumed compensable.  
  • Requires the use of any COVID-19- related sick leave (under federal or state law) prior to using temporary disability benefits. 
  • Does not alter the workers’ compensation medical treatment system – employer controlled, evidence-based medicine, utilization review/independent medical review, and apportionment for permanent disability.
  • Creates a higher standard for certification of temporary disability benefits to ensure employees with asymptomatic or mild cases quickly return to work. Employee must be certified as unable to work every 15 days instead of 45 days.
  • Remains in effect for a set timeline, giving employees, employers and insurers certainty for implementation.
  • The Department of Industrial Relations will not collect payments when there is a death without dependents (current fee program).

Lockton's resource

Our state-by-state summary of workers’ compensation presumption orders can be found here.

Please contact your local Lockton service team member with any questions you may have.

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