An emerging question in the workers compensation arena during the 2020 pandemic has been whether contracting the COVID-19 virus makes an employee eligible for workers compensation benefits. The question is a loaded one as both the law and medical knowledge of the effects of the virus remain highly undeveloped.
To start, however, on September 17, 2020, the governor of California signed Senate Bill 1159, codifying the COVID-19 presumption created by Executive Order N-62-20.
The meaning of a presumption is just that, a presumption is disputable and can be rebutted with the proper evidence.
So what is this presumption you say?
Under SB 1159 all of the following circumstances must exist for the presumption to apply:
For the benefit of the presumption to apply, all of the following circumstances must exist:
- The employee tests positive within 14 days or was diagnosed with Covid-19 after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;
- The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. The date of injury is the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction prior to the positive test; and
- The employee’s positive test occurred during an outbreak at the employee’s specific place of employment.
Complicated, I know. As with most of the code, there is another layer to this. Each word is defined in the code, i.e. what is an “outbreak?” What is a “specific place of employment?” and the like.
Rather than getting bogged down in the details of it all, let’s see what this all this means for you, the injured worker. This presumption makes it easier for workers to prove that the injured worker contracted the novel virus from their workplace while placing the burden of proof to rebut the presumption on the large insurance companies. Some ways insurance companies are able rebut the presumption is by deposing the worker and getting their testimony under penalty of perjury of their whereabouts during that time period or interviewing potential witnesses.
If we can get past the presumption and the defendant cannot present substantial rebuttal evidence, the workers compensation system adds another layer. There must be medical evidence to prove that the virus gave you some sort of permanent disability, or else, what are you really asking for? Benefits in the Workers compensation system are meant to make you whole while you are out of work and recovering from your injury. If you are not injured per the medical evidence per the professionals, you are likely not eligible for benefits.
If you feel like your head is spinning, not to worry, you have both the presumptions and Kesh Law on your side.