On May 6, 2020, Governor Newsom issued Executive Order N-62-20, creating a rebuttable presumption that an employee’s COVID-19-related illness arises out of employment for purposes of obtaining workers’ compensation benefits. This is not the first order of its kind; other states including Alaska, Michigan, Minnesota, Missouri, Utah, and Wisconsin, have imposed similar rebuttable presumptions. However, most of these jurisdictions have limited the rebuttable presumption to first responders. California’s order doesn’t.
At the federal level, House Democrats are looking to follow suit, proposing a similar presumption for certain federal workers under the Health and Economic Recovery Omnibus Emergency Solutions Act (the “HEROES Act”). If enacted as proposed, the HEROES Act would create a presumption that certain federal employees who contract COVID-19 did so in the course and scope of their employment if the employees have a risk of exposure to COVID-19 at work and on-the-job contact with patients, members of the public, or co-workers. A similar presumption would apply to certain maritime workers. The House passed the HEROES Act by a vote of 208-199 on May 15, 2020, but tremendous opposition is expected when the bill reaches the Republican dominated Senate.
Is California’s order likely to stick?
It’s difficult to tell. California business owners are unhappy with the likely significant increase in workers’ compensation liabilities and the inequity of shifting the cost of employees’ COVID-19 illnesses to employers. Challenges to the California order would not be surprising.