It may seem to some readers that I keep 'harping' on the subject of changes to presumptive provisions as they relate to workers' compensation and COVID-19 and I guess you would be correct. Probably because I think this will be one of the single largest reforms or changes that will impact the workers' compensation industry in the long run in many many years.
The recent signing of Executive Order N-62-20 by California's Governor, Gavin Newsome, which provides that any COVID-19 related illness of 'any employee' shall be presumed to arise out of and in the course of employment for purposes of awarding workers' compensation benefits, so long as they employee tests positive or COVID-19 within 14 days of performing 'labor for services at their place of work'. The diagnosis of COVID-19 must be confirmed by valid CDC or California State approved testing within 30-days of the original diagnosis. The Governor's Order applies to all employees working outside the home at the direction of any employer.
Presumptive provisions have been around for years, they effectively 'shift the burden of proof from the claimant (employee) to the respondent (employer)' and are the basis for workers' compensation when it comes to on-the-job 'injuries'. In many states they are part of the 'swap' under the legal system in exchange for employees giving up their rights to bring tort actions against an employer with their exclusive remedy being workers' compensation. But the issue of 'presumption' has always been cloudy when it comes to 'occupational illness'.
In some cases, 'occupational illness' has been much more clear cut such as firefighters with lung damage resulting from repeated smoke inhalation, especially prior to the use of self-contained breathing equipment. Yes, there was a time when firemen would run into burning buildings with only a helmet, and fire-axe, no SCBA. But an occupational illness from something like a 'virus', in most cases state workers' compensation courts have frowned on anything even remotely presumptive in the past and required 'strict proof' that it arose out of employment exclusively.
While some may argue that what California has done will only impact California, and California Workers, and California Employers (as Workers' Compensation rate payers), the reality is that it will impact the Workers' Compensation industry as a whole and ultimately the Reinsurance Market supporting the Workers' Compensation industry. While 'state funds' maybe stretched, many private insurers rely upon this common system of 'reinsurance' as the backbone to support the industry across their entire claim network supporting claims from employers no matter where those employers are located. As overall losses go up, carriers will demand that the states in which they write coverage either permit rate increases or they will stop writing coverage thus limiting availability.
But California is not unique in their 'presumptive revisions' because another ten states have created (or are finalizing) presumptions similar to what California has done. Right now, Wyoming, Illinois, Kentucky, Hawaii, Louisiana, Massachusetts, Michigan, North Carolina, Missouri, Arkansas and New Jersey either have or are expanding their presumptive provisions related to COVID-19. This means that more than 1 in 5 states have already seen to expand presumptive assumptions that COVID-19 is 'job related' when an employee comes down with the infection and files a claim it was related to their employment.
Certainly First Responders and Health Care Workers like those I specifically mentioned in my first article about this topic are in a position to claim valid infections due to their exposures directly related to the nature of their employment, but can the same be said of every single employee regardless of the type of work they perform? It would seem that there should be 'reasonable assumption' versus 'presumption' for some occupations, and in all other cases there should be a process whereby either reasonable standards of proof or potential evidence to the contrary (like evidence of exposure outside the place of employment such as a spouse who was diagnosed prior to the employee) should be taken under consideration.
So there is clearly a 'balancing act' between the needs of employees who are sick with COVID-19 and who actually sustained their infections from their employment, the employers of those employees, the insurers who are covering the employers whether they are State Funds or Private Carriers, and the Workers' Compensation insurance system as a whole. In the long run everyone pays one way or another, and everyone will suffer if we don't get the balance correct. Like the Scales of Justice, we must make certain that the balance is weighed appropriately and proportionately.