May 6, 2020

UPDATE: Essential Workers that Contract COVID-19 Now Presumptively Covered for Workers’ Compensation Benefits. Gov. Gavin Newsom signed an executive order on May 6, 2020 establishing a rebuttable presumption that “essential workers” infected with COVID-19 contracted the virus on the job. The effect of the presumption shifts the burden of proof to the employer to show that the injured worker  did not contract COVID-19 on the job to relieve the employer of liability from a claim for workers’
compensation benefits. The executive order applies retroactively to cover essential workers who contracted COVID-19 back to March 19, 2020, and extends for 60 days from the issuance of the order.

This order follows the announcement by some of the State’s largest workers’ compensation insurers, including State Compensation Insurance Fund (State Fund), easing their own criteria for acceptance of claims by essential workers diagnosed with COVID-19. State Fund, for its part, is now accepting any claim by an essential worker – as defined in Gov. Newsom’s Executive Order N-33-20 – diagnosed with COVID-19 that was confirmed by a positive test during the time period from when the Governor’s stay-at-home order went into effect until the order is lifted. This order will probably be challenged in court, but in the meantime. . . .

Contracting COVID-19 can trigger the receipt of Workers’ Compensation and other public Benefits. With COVID-19 dominating our lifestyle and causing extensive damage to so many individuals’ health and personal financial condition, there is a prevalent focus on what public benefits are available to individuals impacted by the virus. Reasonable evidence-based statistics indicate at least 50% of the population will at some point contract the disease and 1 in 5 of those will need hospitalization. It is reported that COVID-19 is at least 10 times more lethal than regular flu. Whether someone (or their dependents) can get Workers’ Compensation benefits if they fall ill (or die) due to contracting COVID-19 depends on several factors. First, a few words about Workers’ Comp in general: If your work causes an injury or exposes you to anything injurious, and you suffer an injury or sickness as a result, whether caused by a specific incident or over time resulting from “cumulative trauma or exposure,” Workers’ Compensation benefits are generally payable. These benefits include Temporary Disability during the time you suffer a full or even partial wage loss, medical care (including travel expenses), if you suffer permanent impairment, a monetary award for “Permanent” disability and if your employer does not offer you a job after a comprehensive medical report detailing any work restrictions, a job displacement benefit.

If death results, the decedent’s dependents can receive monetary benefits, too. Evidence is mounting that COVID-19 can cause long term organ and heart damage. Workers also are suffering psychological injury and impairment due to exposure. Proving an injury or contracted disease “arose out of and in the course of employment” can sometimes be difficult, and generally, contracting a non-occupational disease from a co-worker or customer is not compensable. However, there are certain types of workers who can assert such a claim: Front line workers whose job requires them to be in frequent contact with people who are known to have COVID-19 and who contract the disease can definitely prove their disease is work related. There are actually two 100-year old California Supreme Court cases finding workers’ comp benefits are payable in this situation, and these cases are still good law. This was in the context of the 1918 world-wide pandemic called the “Spanish Flu.” Governor Newsom’s order resembles the holdings in these cases, and even if the order is challenged, these cases remain good law. Also, generally speaking, an employee who incurs “Special Exposure,” “Increased Risk,” or a “Materially Greater Risk” of contracting COIVD-19 than the general public can probably show entitlement to Workers’ Comp benefits if they contract the disease. There are several cases supporting this theory.

While Alaska, Illinois and Michigan’s legislatures have passed bills establishing a presumption of industrial causation in favor of front-line workers caring for patients with COVID-19, the California legislature is considering such a bill, however it is not (yet) the law in California. We only have Gov. Newsom’s order referenced above. There are also many other public benefit programs available to those whose ability to work is diminished because they or their family members have suffered a serious medical problem. It is good advice to contact a Workers’ Compensation law firm for more detailed advice about potentially available benefits for people suffering from COVID-19, any work-related illness or injury, or to get information about the many other public benefits available for people with medical conditions that interfere with their ability to work, or whose family members have suffered serious injury or illness.

Gold Country Workers’ Comp Center in Grass Valley offers free telephonic consultations to those who want to learn about their rights to public or private benefits in the face of medical conditions or illnesses they or their family members are suffering from. Contact them at (530) 362-7188 or visit www.goldcountrycomp.com