August 4, 2021

Volume XI, Number 216

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August 03, 2021

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August 02, 2021

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Governor Newsom Signs Executive Order Regarding Workers’ Compensation Presumption for Certain COVID-19 Related Claims

Under the California Workers’ Compensation Act (“the Act”), employers must carry workers’ compensation insurance for employee injuries or illnesses which “arise out of and in the course of” employment. The Act, first passed in 1911 and amended over the years by the Legislature, provides a comprehensive system for administering claims, including the provision of disability benefits and the payment for associated medical expenses for work-related injuries.

Now comes the COVID-19 pandemic and a panoply of emergency orders by governors across the country. On May 6, 2020, Governor Newsom signed Executive Order #N-62-20 which creates a presumption that any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if certain conditions are met.

Those conditions include the following:

  1. The employee tested positive for or was diagnosed with COVID19 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;

  2. The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;

  3. The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and

  4. Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done 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 the diagnosis.

Thus, the Governor has taken the extraordinary step of presuming a workplace injury without specific evidence of job-causation.  While the scope and legality of the new Executive Order may be subject to challenge, it is incumbent upon the California employer to review and enforce workplace safety, in all areas, and to specifically protect against the risk of employee exposure to a communicable disease, thereby avoiding added liability and costs associated with job illness or injury claims.

Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 135
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About this Author

David Allen, Jacckson Lewis Law Firm, Labor and Employment Attorney
Principal

David S. Allen is a Principal in the Los Angeles, California, office of Jackson Lewis P.C. He practices in all areas of employment-relations law and labor law, with special emphasis in mining and construction law.

Mr. Allen has represented employers in various industries, including hospitality, health care, mining, manufacturing, and transportation; and he has extensive experience in labor contract negotiations and arbitration, and providing advice and counsel to employers on the full range of labor and employment issues....

213-689-0404
Leonora Schloss, Jackson Lewis Law Firm, Labor Law Attorney
Principal

Leonora “Lenny” M. Schloss is a Principal in the Los Angeles, California, office of Jackson Lewis P.C. Ms. Schloss specializes in wage and hour and leaves of absence issues, advises and trains employers on preventative measures, drafts policies and agreements, conducts wage and hour classification audits and training, and handles employment investigations.

Ms. Schloss has substantial experience litigating single plaintiff and class action discrimination, harassment, retaliation, wrongful termination, and wage/hour cases in...

213-630-8226
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