Does Workers’ Compensation Cover COVID-19?

COVID-19 is a new virus and a lot about it is not yet known—like how and when it can be transmitted. On the other hand, workers’ compensation law is well-developed and knowable. Ultimately, COVID-19 is an illness. Under California law, all injuries and illnesses that arise out of and in the course of employment are compensated by state workers’ compensation benefits.

So the most interesting legal question is not whether California workers who contract COVID-19 during work are entitled to workers’ compensation benefits. Instead, it is how you prove you got sick at work. Effective September this year, state legislation now provides a method to resolve this question.

A Presumption in Favor of Employees

Senate Bill No. 1159 explicitly includes COVID-19 into the definition of compensable injuries and illnesses under the workers’ compensation system. It next establishes a “disputable presumption” that the employee’s COVID-19 infection arose out of and was in the course of employment. The presumption arises if a positive test or diagnosis occurs within 14 days after a day that the employee worked at their place of employment and at their employer’s direction.

The “Outbreak” Requirement for Employees Sick After July 5, 2020

Employees who got sick with COVID-19 after July 5, 2020 must also demonstrate that an “outbreak” occurred within the 14-day period at the specific place of employment. An outbreak constitutes:

·       At least 4 sick employees in a workplace with 100 employees or fewer.

·       At least 4% of the workforce if the number of employees is over 100.

·       A closure of the specific place of employment is ordered by a local health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent.

Various frontline and health care workers listed by the statute are not required to prove an outbreak at their specific place of employment.

Employers Rebutting the Presumption

If not rebutted, the Workers’ Compensation Appeals Board shall presume the sick employee is entitled to benefits. But within 30 days of the employee filing a claim, the employer can rebut the presumption. The legislation includes two examples of how employers may do this:

1.     By showing measures in place to reduce potential transmission of COVID-19 in the workplace.

2.     By showing the employee’s non-occupational risks to COVID-19 transmission.

Even if an employer can rebut the presumption, that does not mean the employee’s case automatically fails. The employee simply pursues an ordinary claim for workers’ compensation without the benefit of the presumption.  

What Establishes a Compensable Positive Diagnosis?

The legislation requires a Polymerase Chain Reaction test approved by the U.S. Food and Drug Administration to determine the presence of the virus. A variety of medical providers can perform the test and make the diagnosis, not just physicians. The employee must be “recertified” for COVID-19 every 15 days.

Does This Apply to Work-From-Home Employees?

At the beginning of the COVID-19 pandemic, many employees were furloughed or worked from home. Calling them back in to the workplace raised concern about their vulnerability to the virus there. This legislation is intended to protect those workers who may now get sick at work. Therefore, the statute explicitly excludes from “place of employment” the employee’s home. Remote workers are unlikely to successfully utilize this presumption to get workers’ compensation benefits.

Workers’ Compensation Benefits for Employees with COVID-19

The new law clearly establishes that employees who get sick with COVID-19 at work are entitled to all remedies available under the workers’ compensation system. That will include full hospital, surgical, medical treatment, disability payments, and death benefits. However, before those benefits can be applied, the employee must first exhaust sick leave benefits if offered by employment.

Hire a Workers’ Compensation Attorney for Help

Talk with a workers’ compensation attorney if you have more questions about what happens if you get sick with COVID-19 at work. Having your claim for compensation competently managed and zealously pursued by an attorney can give you peace of mind. Have a free consultation on your options with an attorney at SoCal Workers Comp. We are dedicated to serving injured and sick workers. Call or submit today.

‍