In 1917, California was one of the first jurisdictions to expressly cover disease in its Workmen’s Compensation Insurance and Safety Act by defining a workers’ compensation injury to include “any disease arising out of the employment.” (See Cal. Labor Code section 3208.) More than 100 years later, California has taken a new dramatic step to create a conclusive presumption of a compensable industrial injury for all essential workers who contract COVID-19.
Executive Order N-62-20
According to Executive Order N-62-20, signed by Governor Newsom on May 6, 2020, any COVID-19-related illness of an employee will be “presumed to arise out of and in the course of the employment” for purposes of awarding workers’ compensation benefits if the employee performed labor or services at the employee’s place of employment (that was not the employee’s home) and at the employer’s direction on or after March 19, 2020.
According to Governor Newsom, “If you’ve tested positive with COVID-19, by a physician, then you are eligible for this workers’ comp benefit. It can only be rebutted by your employer but under strict criteria.” The executive order is in place for 60 days.
This Executive Order is a dramatic shift away from the notion that injuries from nonoccupational diseases are not compensable. While workers exposed to COVID-19 could previously file workers’ compensation claims, it would have been up to the employee to show that he or she contracted the disease on the job. The Executive Order shifts that burden to the employers—to prove that the worker did not get sick because of exposure at work.
Historically, a virus such as the flu was not covered under California workers’ compensation laws. The one long-standing exception was if the employee could establish that he or she suffered “special exposure” to the virus. The Special Exposure exception to the non-compensability of airborne illnesses arises when it is proved that the employment causes an increased risk, a materially greater risk, or a higher probability, of contracting the disease than the general public. This case stood for the proposition that an injury resulting from a nonoccupational disease may be compensable if the employment subjects the employee to an increased risk compared to that of the general public.
A few states such as Michigan and Minnesota are allowing first responders and health care workers to submit COVID-19 workers comp claims to receive benefits without having to prove they were exposed to the virus during the course of employment. But in addition to health care and first responders, California’s Executive Order covers any employee who performed labor or services at the employee’s place of employment since March 19, 2020.