Generally, employees must prove that their injuries occurred within the course of employment in order to obtain workers’ compensation insurance benefits.  When it comes to COVID-19, however, tracing the exact location of infection is a near impossibility. On May 6, 2020, California Governor Gavin Newsom issued Executive Order N-62-20, which creates a rebuttable presumption for a discrete time period that an employee’s COVID-19-related illness arose out of the course of employment for purposes of obtaining workers’ compensation benefits. While EO N-62-20 removes burdens for employees to obtain benefits (including full hospital, surgical, medical treatment, disability indemnity, and death benefits), it does so at a significant cost. Although some of that will fall on workers compensation insurers, ultimately those losses will fall on businesses, whether directly or indirectly, through higher premiums and deductibles going forward.

Who is Safeguarded Under the Executive Order

EO N-62-20 applies to:

• All workers’ compensation insurance carriers writing policies that provide coverage in California;
• Self-insured employers;
• Any other employer carrying its own risk; and
• Any employee acting at the direction of an employer, regardless of whether the employer is an essential business.

If all of the following conditions are met, EO N-62-20 creates a rebuttable presumption that an employee who tests positive for, or is diagnosed with, COVID-19 contracted the virus at work:

• The employee tested positive for or was diagnosed with COVID-19 within 14 days after a day the employee performed work for the employer;
• The location where the work was performed was not the employee’s home;
• The date the employee performed the work was on or after March 19, 2020 and no later than July 5, 2020; and
• Where the employee is diagnosed with COVID-19, the diagnosis must have been done by a California licensed physician and confirmed by further testing within 30 days of the date of diagnosis.

EO N-62-20 vaguely states that the presumption may be rebutted by “other evidence” and imposes a 30-day deadline after a claim is filed for the employer to provide existing evidence to rebut the presumption. After 30 days have passed, only evidence first discovered after the 30 days can be used to rebut the presumption. Unless one of the above requirements can be established, overcoming the presumption may prove difficult if employers are not prepared.

The following are immediate steps employers should take, in compliance with local, state, and federal directives, to position themselves to respond timely and effectively to workers’ compensation claims and reduce the risk of employees contracting COVID-19 in the workplace.

Update Your Injury and Illness Prevention Program

California employers are required to establish and implement an Injury and Illness Prevention Program (IIPP) to protect employees from hazards, including infectious diseases. In accordance with recent guidance from Cal-OSHA, employers should focus now on updating their IIPPs by preparing a written, worksite-specific, COVID-19-specific plan at every facility, performing a comprehensive risk assessment of all work areas, and designating a person at each facility to implement the plan. Workplaces should be regularly evaluated for compliance with the IIPP and employers should document and correct any deficiencies identified. Employers should train key employees at each facility to implement the IIPP and train employees on compliance with the IIPP.

Implement Increased Health and Safety Protocols in the Workplace

California employers should continue to implement increased cleaning and disinfecting protocols at all facilities, vehicles used by employees in the performance of their duties, and any other areas employees perform work. Employees should avoid sharing equipment, phones, or other work tools whenever possible. Personal protective equipment should be provided and not shared amongst employees.

Employers should regularly disseminate updated information and train employees on how to prevent the spread of COVID-19, including training employees on how to self-screen for symptoms at home prior to reporting for work. Employers should educate employees on the importance of not reporting to work if they are experiencing symptoms or if they or someone they live with has tested positive for or been diagnosed with COVID-19. Ongoing and consistent communication with employees is key.

Supervisors should be trained on procedures to notify the company’s HR and/or IIPP representative on how to respond to health and safety issues in the workplace, including employees who are violating company directives regarding social distancing, wearing masks, and/or reporting to work when sick.

Employees working remotely, who are excluded from the new workers’ compensation presumption, should be admonished from visiting the employer’s facilities so as not to create additional exposure.

Respond Quickly to Employee Health Issues

Employers should train their HR professionals and supervisors to respond quickly to employee health issues and to determine whether the circumstances require reporting of the employee’s illness or whether another course of action is more appropriate under the circumstances.

EO N-62-20 has reduced the time period that an employer has to deny a workers’ compensation claim from 90 days to 30 days, so it is critical for employers to report claims quickly. Employers should investigate claims immediately to determine whether the employee meets the criteria above and whether other evidence exists to rebut the presumption. Simultaneously, employers should assess whether the employee has exhausted applicable paid sick leave and Families First Coronavirus Response Act (FFCRA) leave, if eligible, as such benefits must be exhausted before use of any disability benefits under workers’ compensation.

Document, Document, Document!

Lastly, employers should continue to document and track their ongoing efforts with respect to their IIPP, health and safety protocols, employee training, and employee medical issues while maintaining the confidentiality of such records. Failure to maintain adequate records puts the employer in danger of not having sufficient evidence to rebut the presumption that the employee contracted COVID-19 at work.

Employers should consult with employment counsel about how best to prepare for and manage COVID-19-related workers’ compensation claims and seek guidance from carriers regarding their claims reporting process, where applicable.