Keenan Briefings

Briefings

COVID-19 Update: Pending Legislation Could Extend or Expand Workers’ Compensation Presumption

July 01, 2020

On May 6, 2020, Governor Gavin Newsom signed executive order N-62-20 establishing that employees who report to their places of employment after March 19, 2020, and test positive for, or are diagnosed with COVID-19, have a rebuttal presumption for workers’ compensation benefits through July 5, 2020. The details of the executive order can be found in our May 8, 2020 Briefing at https://www.keenan.com/Resources/Briefings/Briefings-Detail/governor-newsoms-executive-order-creates-workers-compensation-presumption-for-covid-19-diagnosis. The California Department of Industrial Relations (DIR) issued a Q&A document clarifying and providing implementation guidance. The details can be found in our May 19, 2020 Briefing at https://www.keenan.com/Resources/Briefings/Briefings-Detail/covid-19-dir-issues-qa-document-regarding-executive-order-n-62-20.

We have been following several bills pending in the legislature that, if passed, could extend and potentially expand the presumption. These bills were outlined in our May 27, 2020 blog post at https://www.keenan.com/Knowledge-Center/Blog/Details/covid-19-update-workers-compensation-presumption-bills. SB 1159 appears to have the most traction currently, as it passed out of the Senate on June 26th and is currently pending review by the Assembly. SB 1159, as currently written, would codify the rebuttal presumption outlined in the executive order, but would not extend it. The other two bills still pending are AB 196 and AB 664. Both of those bills would establish a conclusive presumption for COVID-19 and would extend the coverage of the presumption to before March 19 and continuing indefinitely.

As of the date of this Briefing, it is not known if the Governor will extend his executive order or if such a decision awaits the outcome of the legislature which could be as late as the end of September. This creates the potential for a gap between July 6, 2020 and September 30, 2020 where there is not a presumption, rebuttable or conclusive, and the potential for such a presumption to be retroactive back to July 6, 2020.

For potential claims after July 5, 2020, employers are encouraged to continue a similar process as is currently being followed. If an employee tests positive, or is diagnosed with COVID-19, engage the employee to determine if they feel their exposure is the result of exposure at work. If they do, provide a DWC-1 Claim Form. Upon receipt of the signed DWC-1 Claim Form, file the claim immediately with Keenan or your workers’ compensation administrator. Each claim should continue to be evaluated to determine whether the illness is related to work and what benefits, if any, the employee may be entitled to. Absent extension of the executive order or legislative action, for dates of injury after July 5, 2020, the timeframe to make a compensability decision will revert to 90 days from the date of the filing of DWC-1 Claim Form per the Labor Code.

We will continue to update you as information becomes available. Should you have any questions, please contact your 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.