By Kevin Jeffery, Vice President and General Counsel
During the course of this pandemic, Graniterock has provided useful, clear resources for our customers, community members and colleagues in the construction industry.
One of those resources is a summary of financial relief opportunities available to businesses in our region. You can find an updated version here. Another is an overview of the various Covid-19 construction protocols issued under county shelter-in-place orders. An updated version of that overview is here.
Today we want to update customers, colleagues and community members on the executive order issued recently by Gov. Gavin Newsom concerning workers’ compensation and Covid-19 illnesses.
On May 6, the governor issued Executive Order N-62-60, which declares that, for purposes of awarding workers’ compensation benefits, employees who test positive for Covid-19 are presumed to have contracted the disease in the course of employment, if each of the following requirements are met:
1. The employee tests positive for or was diagnosed with Covid-19 within 14 days after the employee performed work at their place of employment and at the employer’s direction.
2. The day the employee performed work was on or after March 19, 2020.
3. The place of employment where the employee performed the work was not the employee’s residence.
4. If the employee was diagnosed with Covid-19 without a positive test, that diagnosis must have been issued by a physician licensed with the California Medical Board, and that diagnosis must be confirmed with further testing within 30 days of the diagnosis.
This presumption applies to dates of injury or illness from March 19, 2020 through July 5, 2020. Any extension of that end date would require a separate piece of legislation or executive order.
While this presumption is disputable, unless an employer demonstrates with evidence the disease was contracted outside of the workplace, the workers’ compensation system will award benefits. Given the nature of the coronavirus and its transmissibility, rebutting this presumption with clear evidence is likely to be an extremely tall order for any employer.
If an employee has paid sick leave benefits available, those benefits must be used before any temporary disability benefits are payable. If an employee doesn’t have paid sick leave benefits available, he or she will be provided temporary disability benefits from the date of the Covid-19 disability.
California employers are rightly concerned about the potential impact of this order on their experience modification rate, which has ramifications, especially in the construction industry, far beyond direct workers’ compensation insurance costs. While industry groups are lobbying for an exemption from Covid-19 cases impacting EMRs, neither the governor’s office nor the insurance commissioner has yet to issue formal guidance or a ruling on this issue at this time.
Applying this executive order to your business is complicated, and you should reach out to experienced legal counsel and advisors for guidance. This bulletin is meant to provide an overview on the executive order, not serve as legal advice.
Add a Comment
Comments