Today, Governor Gavin Newsom issued an Executive Order (EO) creating a rebuttable presumption that
a worker who is working outside the home at the direction of their employer and who contracts COVID-
19 incurs a work-related injury for purposes of workers’ compensation.
Although we have not seen the actual language of the order, it is our understanding of the elements are
- A rebuttable presumption of work-related injury;
- Applies to all workers who are working outside the home at the direction of their employer. The
EO is not restricted to essential workers;
- Eligibility threshold to be a positive test for COVID-19 or a diagnosis by a physician or surgeon
licensed by the California Medical Board. If a diagnosis is conducted, the diagnosis must be
confirmed by a positive test within 30 days;
- Apportionment applies;
- Time for the employer to deny claims reduced from the current 90 days to 30 days;
- Temporary disability payments start only after the worker has used all other state or federal sick
- California Department of Industrial Relations not to require or accept a “no beneficiary” death
- Re-testing every 15 days during the first 45 days of temporary disability payments;
- Claims to be for injuries beginning March 19 and for 60 days after the end of the state’s current
Shelter-in-Place Order, which could end this week – essentially a 4-month claims period;
- Benefits do not include temporary housing.
COVID-19 claims are currently covered by an employer’s workers’ compensation insurance policy;
however, under current law, the worker claiming he/she contracted the illness at work, has the burden.
This Executive Order has the effect of reversing the burden of proof and placing it on the employer or
the employer’s insurance company.
On the positive side, it is anticipated there will be substantial civil litigation against employers for failure to adequately protect their workers. These civil cases would be estopped or blocked because workers’ compensation coverage is an exclusive remedy for injured workers.