By Michael J. Brady

On May 6, 2020, California Governor Gavin Newsom signed an Executive Order creating a rebuttable presumption that COVID-19 (Coronavirus) is a compensable occupational disease for employees who contract the illness and have a positive test within 14 days of performing work at their place of employment. In effect, the Order shifts the burden of proof that typically falls on the worker and instead requires companies to prove that the employees did not get sick at the workplace.

It should be noted, Newsom’s Order applies to all employees who performed work at the employee’s place of employment, at the employer’s direction, and that occurred on or after March 19, 2020 (the date of Governor Newsom’s original “Shelter-in-Place” Order), not just “essential” employees. This Order does not apply to those “essential” employees who were working from their home or residence but only those who were required to go into their work environment.  The Order will also require workers to use specified sick time and other benefits before receiving workers’ compensation benefits under the presumption.  If no sick time or other benefits are available to the employee, the employee shall be provided temporary disability or Labor Code section 4850 benefits.  The presumption will only apply to dates of injury from March 19, 2020 to July 5, 2020 (60 days after the date of the Executive Order), unless later amended.

This presumption is disputable and may be controverted by other evidence, but unless so controverted by other evidence, the Workers’ Compensation Appeals Board is bound to find in accordance with it. If the employer, or its insurance carrier, fails to reject the claim of a work-related COVID-19 illness within 30 days after the Claim Form is filed under Labor Code section 5401, the illness should be presumed compensable. (Emphasis added.)  The claim may only be rebutted thereafter by evidence that is only discovered subsequent to the 30-day period. This Order applies to all workers’ compensation insurance carriers writing policies and providing coverage in California, self-insured employers, and any other employer carrying its own risk, including the State of California and its municipalities.  If Yrulegui & Robertscan assist in any way, please let us know.