|California Governor’s Order Creates The Presumption That Employees Got The COVID-19 Virus At Work|
By Lonce Lamonte - June 3, 2020
According to a recent executive order issued by California Governor Gavin Newsom, any COVID-19 diagnosis qualifies an employee for workers’ compensation benefits.
Business owners and employers across the country have been struggling with the prospect of increased liability arising from the Coronavirus pandemic, especially now that businesses are reopening across the country after three months of lockdown orders at the state level. In California, any employee experiencing any COVID-19-related illness is presumed to qualify for workers’ comp benefits if:
● The employee tested positive for or was diagnosed with COVID-19 within 14 days after working at the employer’s direction.
● The work was performed on or after March 19, 2020, and before July 6, 2020.
● The place of employment was not the employee’s home.
● The diagnosis was performed by a licensed California physician and the diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
While the California order is the most expansive of its type so far, other states have imposed similar presumptions, but only for specific types of workers. Alaska, Florida, Michigan, Minnesota, Missouri, New Hampshire, Utah, Washington State and Wisconsin have all enacted, announced or released rules creating such presumptions for first responders or essential workers (such as firefighters, law enforcement and certain medical providers) who become infected with COVID-19 contracted at work.
Legislation is pending in other states to impose similar presumptions and several governors have signed executive orders to the same effect. Much of the pending legislation (as currently drafted) seek to create a presumption for specific and narrow categories of employees that are considered more likely to come into contact with the coronavirus in the course and scope of their employment.
Some pending state actions, such as one bill currently before the Ohio state legislature, are similar to California’s executive order in that they cover any employee required to work outside of his or her home during the state’s stay-at-home order.
For employees not covered by a presumption, they will still be required to demonstrate causation, that is, that they contracted COVID-19 in the workplace. But existing case law or statutes in various jurisdictions may make easier an employee’s attempt to obtain workers’ comp benefits for COVID-19 related injuries.
In Connecticut, for example, direct exposure to an infectious disease (as opposed to, say, a physical wound or trauma) can be a compensable injury under the state’s Workers’ Compensation Act. Under the District of Columbia Workers’ Compensation Act, an employee has a rebuttable presumption that the claim is compensable if something unexpectedly went wrong with his or her body and the working conditions could have caused the harm.
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