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 presumption.
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 best practices:
- 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 neighbors.
- 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 [email protected].
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.