Keenan Briefings

Briefings

COVID-19: DIR Issues Q&A Document Regarding Executive Order N-62-20

May 19, 2020

On May 18, 2020, the California Department of Industrial Relations (DIR) issued a Q&A document clarifying and providing implementation guidance for Governor Newsom’s Executive Order N-62-20, which established a rebuttable presumption that certain workers contracting COVID-19 between March 19 and July 5, 2020 had done so at work and were therefore eligible for workers’ compensation benefits.

Of special interest to employers are question and answer numbers 8 and 12 regarding the use of paid sick leave benefits.

As a reminder, the Families First Coronavirus Response Act (FFCRA), issued March 18, 2020, among other things provides for 80 hours of paid sick leave for those employed by public agencies and private employers with fewer than 500 employees. Hospitals and certain first responders are exempt. More information regarding FFCRA can be found here:

https://www.keenan.com/Resources/Briefings/Briefings-Detail/hr-6201-families-first-coronavirus-response-act-provides-new-provisions-aimed-at-coronavirus-preparedness

Q&As Specific to Employers Regarding Paid Sick Leave Benefits

Q8. I was diagnosed with COVID-19 and have been using my own sick leave while I have been unable to work. Under Executive Order N-62-20, if my illness is deemed related to my work, is my employer required to give me my sick leave back?

A: As explained below, it depends upon the type of sick leave benefits you are using.

    • If your employer is providing you paid sick leave specifically available in response to COVID-19 (such as under the Families First Coronavirus Response Act or Executive Order N-51-20), then you must use that sick leave before you receive temporary disability benefits.
    • If you do not have any supplemental paid sick leave specifically available in response to COVID-19, temporary disability benefits or benefits paid under Labor Code section 4850 should have been paid by your employer from the time you became disabled. This means that, if you took paid leave (sick leave, vacation time, personal time off) through your employer’s plan, that leave should be restored back to you. If you have any questions about this or to address your specific situation, please speak with your employer.

Q12. How long does my employer have to decide whether it will accept or deny my claim?

A: If you meet the criteria for this presumption, your employer will have up to 30 days to investigate and make a decision whether to accept or deny your claim. If your employer fails to reject your claim within 30 days, your injury or illness is presumed compensable, and your employer can then rebut that presumption only with evidence it discovered after the 30-day period. Until your employer makes that decision, you will be eligible for up to $10,000 in medical treatment for your COVID-19-related illness. During that time, you may be eligible to receive federal, state, or local COVID-19-specific paid sick leave benefits, so you should speak to your employer about those benefits. If such benefits are not available, you may be eligible for benefits from the Employment Development Department.

Keenan’s Briefing on Executive Order N-62-20 can be found at the links below:

https://www.keenan.com/Resources/Briefings/Briefings-Detail/governor-newsoms-executive-order-creates-workers-compensation-presumption-for-covid-19-diagnosis

The complete Q&A guidance can be found on the DIR’s website at:

https://www.dir.ca.gov/dwc/Covid-19/FAQs.html

Employers are encouraged to have close communication with their workers’ compensation claims administrator regarding the payment of sick leave in response to COVID-19 and, in particular, when a potential claim for workers’ compensation benefits has been filed. Temporary disability benefits, when due, are not paid until the 80 hours of paid sick leave under FFCRA is exhausted. When temporary disability is paid, close integration with other available sick leaves or other available leave provisions is important to ensure employees are paid correctly and not overpaid.

For more questions regarding how various sick time and leave provisions integrate with workers’ compensation temporary disability, please contact your Keenan Risk Management Analyst.


Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.