COVID-19 Related Workers’ Compensation Claims: Response to Governor Newsom’s Executive Order

On May 6th, 2020 California Governor Gavin Newsom issued an Executive Order establishing a time-limited presumption that COVID-19 contracted by employees working outside their homes is work related. The presumption has several limitations, including that sick leave benefits must be exhausted before workers compensation disability benefits will be paid, that diagnosis must be made by a licensed doctor or surgeon and confirmed via testing, and that the employee must have worked at least one day outside his or her home between March 19 and July 5, 2020.

The order also states that the presumption can be disputed and controverted with evidence, but that if it is not, the WCAB is bound to find in accordance. At the time of this writing, our interpretation of this order is

  1. All employees working outside the home between March 19 and July 5, 2020
  2. Who also receive a confirmed diagnosis of COVID-19
  3. WILL be covered by workers compensation
  4. UNLESS evidence shows the employee did not contract the virus in the course and scope of employment
  5. In which case coverage can be denied.
  6. If the claim is not controverted based on evidence the virus was not contracted in the course and scope of employment, the Workers Compensation Appeals Board will be bound by the order and benefits must be provided.

You may read the Governor’s Order here

Evaluating claims for coverage is the responsibility of insurance companies. Only insurance companies can find or deny coverage, or controvert a claim after investigation and discovery of evidence. It is therefore our recommendation that if your organization has an employee who tests positive or receives a diagnosis of COVID-19, AND who was working outside the home between March 19th and July 5th 2020, you should provide the employee with the DWC-1 Employee Claim Form AND file the Form 5020 Employer’s Report of Injury with your workers compensation insurer. We recommend you do this even if there is no indication the employee contracted the virus at work, and even if there is affirmative evidence the virus was contracted elsewhere.

This will give your insurance company the opportunity to investigate the claim, determine if there is enough evidence to rebut the presumption established in the Governor’s order, and (if appropriate) deny the claim. As has always been the case, employees who contract the virus in the course and scope of employment are entitled to workers compensation benefits, the Governor’s order has not changed that. However, the order does make it more likely that there will be coverage in situations where the origin of the infection is unclear. It is not yet clear how easy or difficult it will be to rebut the presumption of compensability, and it is not yet clear what the costs of the claims found compensable will be. It is clear that to have the opportunity to rebut the presumption in the Governor’s order, there must first be a claim made. As always, we are here to answer your questions, help you file and manage claims, and to advocate on your behalf with our insurance company partners.