COVID-19 and Your Rights Under California's Workers' Compensation System
There is a lot of misinformation concerning COVID-19 when it comes to workers who may have contracted the disease on the job. Employers and their insurance companies have not all committed to taking care of employees exposed to COVID-19 at work, so it is imperative that workers understand the facts. We at Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP (GEK) are here to dispel those myths and offer consultation and/or representation so the rights of injured workers are not ignored.
When it Comes to Causation
If your job puts you at a greater risk of contracting COVID-19 than that faced by the general public, you may be entitled to Workers' Compensation benefits. Examples of such "high-risk" essential jobs are healthcare workers, hospital workers, nurses, first responders, utility workers, pharmacy technicians, grocery store workers, restaurant workers, delivery drivers, etc.
The risk to two of these essential groups—first responders and healthcare workers—is deemed so high that two California legislators have introduced Assembly Bill (AB) 664 that would, if passed, create a COVID-19 presumption awarding Workers' Compensation benefits for those in these groups who contract the novel coronavirus.
"Though AB 664 would allow for a conclusive presumption for police, firefighters and certain hospital staff, grocery store employees and other workers who are deemed essential were left out," explains GEK Partner Steve Scardino. "It is our hope, however, that future legislation would include these vital workers."
Burden of Proof
There is a great deal of case law, including Bethlehem Steel Company v. IAC to support the fact that the burden of proof is on the employee (applicant) to establish that he or she was subject to a special or materially greater risk than that of the general public. However, that proof does not have to be provided in exacting detail; industrial causation can be established based on reasonable probability. The applicable standard of proof as outlined in Labor Code 3202.5 is proof by a preponderance of evidence.
OSHA Steps InTaking the risk factor issue a step further, the Occupational Safety and Health Administration (OSHA) recently published "Guidance on Preparing Workplaces for COVID-19," which outlines ways to analyze whether a certain workplace may pose a particular risk. OSHA separated workplaces into the following four risk zones:
- Very High Risk Exposure
- High Risk Exposure
- Medium Risk Exposure
- Lower Risk Exposure (Caution)
State Fund Takes Action
Recognizing the dangers posed by workplace exposure one insurer, State Fund, California's largest Workers' Compensation insurer, recently announced it would make an additional $165 million available to employers and workers impacted by COVID-19.
Effective immediately, State Fund will accept any claim by an essential worker as defined by Governor Gavin Newsom's executive order for a diagnosed case of COVID-19 regardless of whether the worker can demonstrate the virus was contracted during the course of employment.
The carrier is also creating a $50 million "Returning California to Work COVID-19 Safety Protocol Fund" to help businesses that aren't considered essential. The fund will provide grants to help defray costs of safety-related expenses to protect workers from COVID-19.
The Threat Is Real and Workers' Compensation Can Help
"We are in the middle of challenging times the likes of which most of us have never experienced, so it is vital now more than ever that we continue to fight for the rights of injured workers, including those who have contracted COVID-19 on the job," says Scardino. "When California assembly members and OSHA are setting guidelines and creating strategies to enhance the health and welfare of the state's workers, and State Fund is providing broad-reaching coverage regardless of proof of causation, you know the danger is real and remedies that support workers are crucial.
"As Workers' Compensation attorneys, we are here—working remotely—and we can help. Systems are in place within our office and through the Workers' Compensation Appeals Board so that we can answer your questions, process claims, and obtain the relief and Workers' Compensation benefits that injured workers with COVID-19 need.
"GEK is here for you."