Under the California Workers’ Compensation Act (“the Act”), employers must carry workers’ compensation insurance for employee injuries or illnesses which “arise out of and in the course of” employment. The Act, first passed in 1911 and amended over the years by the Legislature, provides a comprehensive system for administering claims, including the provision of disability benefits and the payment for associated medical expenses for work-related injuries.

Now comes the COVID-19 pandemic and a panoply of emergency orders by governors across the country. On May 6, 2020, Governor Newsom signed Executive Order #N-62-20 which creates a presumption that any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if certain conditions are met.

Those conditions include the following:

  1. The employee tested positive for or was diagnosed with COVID19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
  2. The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;
  3. The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and
  4. Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board, and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.

Thus, the Governor has taken the extraordinary step of presuming a workplace injury without specific evidence of job-causation.  While the scope and legality of the new Executive Order may be subject to challenge, it is incumbent upon the California employer to review and enforce workplace safety, in all areas, and to specifically protect against the risk of employee exposure to a communicable disease, thereby avoiding added liability and costs associated with job illness or injury claims.

Jackson Lewis’ Coronavirus Task Force will continue to monitor changes in the law pertaining to COVID-19. Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.