On May 6, 2020, California Gov. Gavin Newsom signed Executive Order N-62-20
(EO N-62-20), which creates a rebuttable presumption, for purposes of
receiving workers’ compensation benefits, that employees who test positive
for or are diagnosed with COVID-19 contracted the virus while at work. With
this executive order, California becomes the latest state to expand
workers’ compensation benefits to employees during the pandemic.
Under EO N-62-20, if an employee tests positive for or is diagnosed with
COVID-19 within 14 days after performing work at the employer’s workplace
at the employer’s instruction, there is a rebuttable presumption that the
COVID-19-related illness arose out of and in the course of employment, for
the purposes of awarding workers’ compensation benefits. This presumption
will entitle employees to full benefits for medical treatment,
hospital/surgery expenses, disability indemnity and death.
Significantly, while EO N-62-20 requires that a physician diagnose the
employee with a COVID-19-related illness, it does not define or limit what
qualifies as a “COVID-19-related illness,” and there is no limitation on
the type of “employee” covered by the executive order. Indeed, California
is just entering phase two of its reopening and businesses previously
deemed non-essential are resuming operations. Thus, under EO N-62-20 as
drafted, employees who are just now resuming work will also be covered by
the rebuttable presumption. Likewise, although EO N-62-20 imposes
presumptive workers’ compensation liability, it does not provide guidance
to employers on the means or evidence they may use to adequately rebut the
EO N-62-20 covers employees whose date of injury is within 60 days of the
issuance of the executive order, meaning on or before July 5, 2020.
Accordingly, as many California businesses reopen and shelter-in-place
restrictions loosen, employers will nonetheless be presumptively liable for
any COVID-19 infections of their workers, despite any other factors
potentially contributing to such exposure.
Like California, other states have taken actions to expand workers’
compensation benefits to employees or create a presumption that employees
contracted COVID-19 in the course of their employment, for the purposes of
obtaining workers’ compensation benefits.
The Illinois Workers’ Compensation Commission enacted a similar but
narrower emergency rule that provided a rebuttable presumption that first
responders and essential workers who contracted COVID-19 were infected
while at work. The emergency rule was ultimately repealed after an Illinois
court granted a temporary restraining order blocking it.
Other states have issued or enacted similar directives. Florida, for
example, issued CFO Directive 2020-05 to enable certain “Frontline State
Employees” who test positive for COVID-19 to enjoy a presumption that their
workers’ compensation claim is compensable. Missouri issued a similar
emergency rule creating a rebuttable presumption of occupational illness
applicable to certain first responders who contract or are quarantined for
COVID-19. Arkansas and North Dakota also announced executive orders that
extend workers’ compensation coverage to first responders and front-line
health workers, but do not provide a similar rebuttable presumption that
the illness was contracted at work. Washington state provided that
healthcare workers and first responders will receive workers’ compensation
benefits during the time they are quarantined after being exposed to
COVID-19 on the job.
Alaska, Michigan, Minnesota, New Hampshire, Utah and Wisconsin enacted
rebuttable presumptions that first responders or essential workers (i.e.,
firefighters, law enforcement and certain medical providers) who become
infected with COVID-19 contracted their illnesses at work. Kentucky enacted
a similar rebuttable presumption for a larger category of employees,
including grocery and postal service workers.
Louisiana, Massachusetts, New Jersey, New York, North Carolina, Ohio,
Pennsylvania, Puerto Rico and Vermont are among other jurisdictions where
efforts are pending to enact a similar presumption in favor of employees
who have contracted COVID-19. Much of this pending legislation aims to
create a rebuttable presumption for a narrower category of first responders
than California’s EO N-62-20, but some, such as the Ohio bill, aim to more
broadly cover any employee required to work outside of his or her home
during the stay-at-home order.
Planning ahead, employers looking to rebut any presumption that the
COVID-19 exposure occurred in the workplace should utilize the following
- Establish a COVID-19 workplace health and safety policy that complies
with OSHA and any applicable state or city health and safety mandates.
- Establish a policy that specifies the frequency with which common areas
and frequently touched surfaces are sanitized and disinfected.
- Implement workplace safety measures, such as requiring frequent hand
washing, face coverings when interacting with other employees or customers,
and social distancing.
- Provide employees with personal protective equipment, such as masks,
gloves and hand sanitizer.
- Require daily temperature checks and reporting of symptoms.
- Prohibit any individual who demonstrates symptoms or tests positive for
COVID-19 from entering the workplace.
- Require daily inquiries of employees regarding exposure to individuals who have
tested positive for COVID-19, such as family members, friends or
- Track and retain the foregoing (in a manner that protects
confidentiality) to be able to dispute any notion of workplace COVID-19
exposure by an employee.
For questions about how different state actions may affect your business,
contact any of the McGuireWoods team members listed below, or any other
member in the
labor and employment group.
McGuireWoods has established a
COVID-19 Response Team
to help clients navigate urgent and evolving legal and business issues
arising from the novel coronavirus pandemic. Lawyers in the firm’s 21
offices are ready to assist quickly on questions involving healthcare,
labor and employment, education, real estate and more. For assistance,
contact a team member or email firstname.lastname@example.org.
McGuireWoods has published additional thought leadership analyzing how
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