United States: California COVID-19 Workers' Compensation Presumption Expired On July 5, 2020—Will It Be Revived?

On May 6, 2020, Governor Gavin Newsom of California issued Executive Order (EO) N-62-20, creating a temporary rebuttable presumption that employees working outside of their homes who test positive for COVID-19, the disease caused by SARS-CoV-2, may receive workers' compensation benefits. In doing so, the governor simplified the process for sick employees to seek certain wage replacement benefits, and therefore sought to encourage ill employees to stay home to reduce the spread of COVID-19.

As the COVID-19 pandemic continues across the state, it has gone almost entirely unnoticed that the rebuttable presumption created by EO N-62-20 expired on July 5, 2020. The executive order stated that "[t]his presumption shall only apply to dates of injury occurring through 60 days following the date of this [o]rder." In addition, any employee who tested positive or received a COVID-19 diagnosis "within 14 days after a day that the employee performed labor or services at the employee's place of employment" was covered by the presumption. As a result, a positive test result or diagnosis through at least 14 days after the order's expiration could arguably entitle the employee to assert the presumption.

What Happens Next?

Whether the COVID-19-related rebuttable presumption will be revived remains to be seen. Ogletree Deakins will continue to monitor the governor's briefings and new executive orders for any sign that the state will continue or reinstitute the presumption. Until that time, the presumption will fall away but employees who test positive for COVID-19 while performing work outside the home may still seek workers' compensation benefits. Without the presumption, these employees will be required to prove causation from work-for example, that they were in close contact to other employees, customers, or vendors who later tested positive for COVID-19 or were otherwise exposed to a person with COVID-19.

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