California’s Presumption of WC Compensability for COVID-19
Legislation before the Governor of California would restructure the state’s approach to making workers compensation benefits available to employees who have been diagnosed with COVID-19.
In early May of this year, the Governor of California issued a sweeping Emergency Order creating a rebuttable presumption that COVID-19 positive employees working outside of the home between March 19 and July 5 contracted the virus at work. At the time, California’s Workers Compensation Insurance Rating Bureau estimated the order would cost employers and their insurers $1.2 billion in medical care, disability payments and death benefits.
On August 31, the California legislature passed an extension and restructuring of the presumption of compensability which now awaits the Governor’s signature. As described in more detail in this presentation, the legislation would:
· Codify the presumption established by the emergency order for the period March 19 to July 5.
· Extend the presumption of compensability for first responders and certain health care workers through 2022.
· Limit the presumption of compensability for other employees working outside of the home to apply only if there has been an outbreak of COVID-19 at the workplace.
Under the presumption rules for workplace outbreaks, an employer must report to its insurance company (or claims administrator if self-insured) once the employer becomes aware an employee has tested positive for COVID-19. The insurer will keep track of these reports to determine whether 4 or more employees at a specific workplace (or 4% of the workforce at the site, if greater) have tested positive over a rolling 14-day period. If that threshold has been met, the presumption of compensability arises with respect to employees testing positive for COVID-19 during the period of the outbreak and who worked at the location of the outbreak within the prior 14 days.
The employer can rebut the presumption that an employee became infected with COVID-19 due to a workplace outbreak with evidence of protective measures put in place to reduce the potential transmission of COVID-19 at the worksite or evidence of the employee’s nonoccupational risks of COVID-19 infection.
While a number of states have enacted or continue to consider presumptions of compensability under state law, it remains unclear how state workers compensation benefits would coordinate with federal proposals to create a COVID-19 compensation fund such as the Pandemic Heroes Compensation Act of 2020 (HR 6909).
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