Far wider group of California-based employees eligible for workman’s comp if they contracted COVID-19

If a worker in California contracts the COVID-19 virus, changes in the state’s workman’s compensation (WC) laws will be very clear where he or she caught it – on the job.

In an order handed down last week by Governor Gavin Newsom, current workers’ compensation law was changed so that any diagnosis of the virus “shall be presumed to arise…in the course of employment.” 

“This coverage is far broader than similar presumptions established by other states, which have generally been limited to a narrow scope of front-line and other essential workers,” the law firm of Fisher Phillips recently wrote in an online commentary on the change.    

But there is a multi-part test that must be met to determine whether the COVID-19 is work-related.

– ”The employee tested positive for 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.”

– That diagnosis must be after March 19, 2020.

– The place of employment for the employee was not their home, which from the perspective of the trucking and freight sector would presumably exclude those employees not behind the wheel or on a loading dock and who were able to take their duties home with them. 

– A physician performed the diagnosis which was then confirmed by another test within 30 days.

Joseph Rajkovacz, director of governmental affairs for the California-based Western States Trucking Association, said his company’s membership has not yet reported any instances of COVID-19. But in reviewing the rule, Rajkovacz noted that trucking companies already deal with workman’s comp claims that can be difficult to challenge 

“People claim a back injury at work and it’s almost impossible for any employer to defend themselves,” Rajkovacz said. “So in a certain way, in my mind, it is kind of no different than other ailments employees can have.”

Except it could be argued that a diagnosis of a bad back is more subjective than the diagnosis of COVID-19, which for all the questions surrounding false positives and negatives is likely to be more definitive than a bad back. Secondly, the initial test needs to be re-confirmed.

In a commentary on the change, Fisher Phillips said under WC laws previously, workers seeking WC benefits were required “to establish some reasonable factual basis for asserting that the workplace caused their illness or injury.”

The firm’s commentary also stated, “However, the [Newsom order] turns that analysis on its head. Instead, if any ‘covered worker’ contracts COVID-19, it would be automatically ‘presumed’ to be work-related without the employee having to provide any further proof.”

Given the fact that COVID-19 is a communicable disease, the burden of proof is now on the employer, and as the law firm asked, “How do you prove that COVID-19 was contracted outside the workplace? It’s a difficult task, meaning most claims are likely now going to be covered by workers’ compensation.”

Even if an employer has no COVID-19 cases or just a few, the law firm argues that every company should be concerned by the implications. 

“There is little doubt that these changes will result in additional costs to the system that will be passed through to all employers via increased premiums,” Fisher Philips said.

However, perhaps of more importance are the more broad impacts to California’s workers’ compensation system as a whole. 

Several weeks ago, the Workers’ Compensation Insurance Rating Bureau of California gave a wide range of workmen’s compensation costs to the state for taking care of just front-line workers. The low end – $2.2 billion. The high end – $33.6 billion. If that portion of the state’s entire work force that contracts COVID-19 will now come under workmen’s compensation, the figure obviously will be higher. 

The “presumption” that an employee contracted COVID-19 on the job will be in place for 60 days from May 4, the date of the order.