EXECUTIVE ORDER N6220 – HOW IT IMPACTS YOUR WORKERS’ COMP CLAIMS

On May 6, 2020, Gavin Newsom, Governor of the State of California, issued Executive Order N-62-20 providing a rebuttable presumption of AOE/COE for any employee diagnosed within 14 days of employment on or after March 19, 2020, that was not working at home. This presumption is in effect through 60 days following the date of the Order.

What is noticeable about the Executive Order is it does not carve out any specific type of employment or employer. The Executive Order provides a presumption of injury only for employees working for an employer during the period from March 19, 2020, and up until 60 days after May 6, 2020, that have been certified to have COVID-19. If you have employees that have worked or are working during this period then you will need to be aware of this presumption and make an immediate determination within 30 days if possible whether to accept or deny the claim. The key change to provision of benefits is that a medical certification is required 15 days after diagnosis, and recertification every 15 days thereafter for the first 45 days after diagnosis by a licensed physician under the California Medical Board.

If you need assistance evaluating whether you have sufficient evidence to deny a COVID-19 workers’ compensation claim, please immediately contact your carrier and your KT&T workers’ compensation insurance defense counsel for a discussion as to the basis of your dispute. The parameters regarding employment periods are specific and you may wish to obtain a medical review of the documentation provided to ensure the certification was issued by a licensed physician of the California Medical Board, which is information that can be verified HERE. The intent of Gavin Newsom’s Order is not to preclude certain types of employers or types of work, and therefore the initial focus in investigating these claims is on the period of employment and medical evidence.

Be advised that pursuant to the parameters provided by the Executive Order, you as the employer, carrier and/or TPA have the burden of proof to rebut that a COVID-19 diagnosis arose out of or was caused by the individual’s employment.

The Order describes the presumption as follows:

  1. Any COVID-19 related illness of an employee shall be presumed AOE/COE for purposes of awarding WC benefits if:
    a. Employee tested positive or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
    b. The date of employment was on or after March 19, 2020.
    c. The place of employment was not employee’s home or residence.
    d. Diagnosis of COVID-19 was made by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of diagnosis.

PRACTICE POINTS:

  1. Employers need to notify the carrier immediately: If denial is not issued within 30 days after the claim is filed then the illness shall be presumed compensable unless rebutted by evidence discovered only subsequent to the 30-day period.
  2. Employers should consider allowing its employees to work remotely for the next 60 days: The Executive Order only applies to dates of injury up to the next 60 days, therefore any employer which can allow its employees to work remotely, however temporarily, probably should do so in order to avoid the application of the Presumption.
  3. Temporary Disability (TD):
    a. Paid sick leave benefits available in response to COVID-19, those benefits shall be used and exhausted before any TD benefits or benefits under LC §4850 are due and payable. Where an employee does not have sick leave benefits, the employee shall be provided TD or benefits under LC §4850 from date of disability without a waiting period.
    b. To qualify for TD or LC §4850 benefits an employee must satisfy the following:
    1. i. Employee tests positive or is diagnosed on or after the date of the Order, the employee must be certified for TD within 15 days after the initial diagnosis and must be recertified for TD every 15 days for the first 45 days following diagnosis.
    1. iii. The physician must hold a physician and surgeon license issued by the California Medical Board. This can be an MPN physician or healthcare organization, a predesignated WC physician or physician in an employee’s group health plan. If the employee does not have a designated physician or group health plan, the employee should by certified by a physician of his choosing who holds a physician or surgeon license.
      ii. If the employee was tested or diagnosed before May 6, 2020, the employee must obtain certification within 15 days of the date of the Order documenting a period of TD and inability to work and must be recertified every 15 days thereafter for the first 45 days subsequent to diagnosis.

4. Department of Industrial Relations shall waive collection on any death benefit payment pursuant to LC §4706.5 arising out of claims covered by this order.

It is anticipated that you will be addressing presumptions and exposure, and investigating your COVID-19 cases in response to this new Executive Order. The decision whether to assert medical control immediately is an important aspect of this type of case. Whether or not an applicant was exposed at work and whether their particular position provides exposure are going to be subject to legal analysis and medical determinations. There are presently four (4) bills regarding COVID-19 presumptions pending with the California State Legislature at this time.

KT&T is here to help with your defense needs! Contact us via our website.

DISCLAIMERS:

This is not a statutory inclusion in the Labor Code, and there is a question as to whether this is lawful and binding, but any employer or carrier challenging such an order may want to consider the political and social ramifications of such an Order.  The California State Death Without Dependents (DWD) unit may not consider that it does not have a right to pursue a statutory provision to collect benefits just because the Governor says the statute does not apply. Not many courts are likely to agree.

This is for informational purposes and should not be construed as legal advice. Please contact our office via our website for a legal opinion specific to your case.

The following are recommended links:

New Executive Order 05.06.20

Original Executive Order 03.04.20

CDC Coronavirus 2019 Resource

Department of Industrial Relations News Releases

EDD COVID-19 Resource Page

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