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On May 6, 2020 Governor Gavin Newsom signed Executive Order N-62-20, which provides that under certain circumstances it is presumed that workers who contract a COVID-19-related illness between March 19 and July 5, 2020 have done so at work and are thus eligible for workers’ compensation benefits. To qualify for the presumption the diagnosis must be made within fourteen days of working outside the home. The executive order also states that the presumption is rebuttable.
California’s legislators are also weighing a variety of bills for a more permanent presumption of COVID-19 work-relatedness. Assembly Bill 664 would create a “conclusive presumption” for a variety of emergency and healthcare workers. Senate Bill 1159 would effectively codify Governor Newsom’s Executive Order N-62-20 and create a rebuttable presumption for COVID-19 for any employee in California who is diagnosed with COVID-19 14 days after working outside the home.
California’s executive order and pending legislation are part of a rapidly expanding national trend. Legislative bodies across the country are currently considering laws creating broad evidentiary presumptions of work-relatedness for COVID-19 workers’ compensation claims.
As of April 30, 2020,
California
does not yet have a law creating a presumption of work-relatedness for the diagnosis of COVID-19. However, national trends suggest that such legislation may only be a matter of time.
Laws creating broad evidentiary presumptions for COVID-19 present both practical and legal problems for employers and workers’ compensation insurance carriers and may also ultimately frustrate their intended beneficiaries -- the front-line workers suffering from COVID-19. For workers, the rush to legislate has resulted in bills that are overbroad, covering employees with no special risk of exposure e.g. police dispatchers and hospital administrators, and under broad, often leaving out less glamorous jobs with high exposure such as bus drivers and store clerks. For employers and insurers, these laws radically shift the burden of proof on existing policies and may create enormous liabilities. Challenges to these laws will need to be resolved by courts - these bills may not withstand constitutional challenges based on retroactivity, the takings clause, the contracts clause, and due process.
Chartwell is working across the nation to represent the interests of insurers and employers. Chartwell attorneys are on the front-line litigating all issues associated with COVID-19 and are available to advise regarding both individual claims and litigation challenging legislation.
Chartwell Law represents the interests of insurers and employers, as such, we continue to continue to monitor the legal landscape. If you have any questions about issues associated with COVID-19, our attorneys are available to help. Please contact your Chartwell Law attorney or email us at Covid19WC@chartwelllaw.com.
