If you're a healthcare worker and you believe that you contracted COVID-19 on the job, you may not be fully aware of your legal options. The San Diego workers' compensation attorneys at McLaughlin & Sanchez explain how healthcare workers may be able to obtain workers' compensation benefits after becoming sick on the job. If you have any questions regarding your eligibility for workers' compensation, we have answers. Here's what you need to know.
Q: ARE HEALTHCARE PROVIDERS COVERED BY THE RECENT LAW (SB 1159) PROVIDING A PRESUMPTION THAT EMPLOYEES WHO CONTRACT COVID-19 CONTRACTED IT AT WORK?
A: The short answer is, yes. However, the law is broken down into two separate presumptions based on time. The proof necessary to invoke the presumption for the two presumption periods is different for each. In addition, the presumption also defines what types of employees are covered by the new presumption law.
The first presumption time period covers the period of 3/19/20 through 7/5/20. This is the period when Governor Newsom initially signed his presumption order regarding COVID-19, when employees were working during the initial phase of the shutdown in March, 2020.
The second presumption time period took effect on 7/6/20 and will continue through 12/31/22. Recently diagnosed Healthcare Providers with COVID-19 will fall under the second time frame presumption.
Q: UNDER THE SECOND PRESUMPTION PERIOD, WHAT HEALTHCARE PROVIDERS ARE COVERED?
A: The new presumption ensures that certain healthcare providers are covered. They include employees who provide direct patient care or a custodial employee who is in contact with COVID-19 patients who work at a general acute care hospital, acute psychiatric hospital, skilled nursing facility, intermediate care facility/developmentally disabled continuous nursing facility and a hospice facility. Also covered are registered nurses, emergency medical technicians and emergency medical technician paramedics as defined under their licensing laws, employees who provide direct patient care for a home health agency and IHSS workers so long as they provide their services outside of their own home or residence.
Q: WHAT DO HEALTHCARE PROVIDERS HAVE TO PROVE IN ORDER TO COME UNDER THIS SECOND PRESUMPTION PERIOD?
A: First, the healthcare provider must test positive for COVID-19 within 14 days of working for your employer at your employer's place of employment. In other words, you cannot be working at home which will not be an issue for most healthcare providers. Second, the COVID-19 test must meet certain criteria for the test to be considered a valid test under the presumption law. For example, antibody testing will not be considered valid to prove a positive COVID-19 test, but it is under the first presumption period.
Q: DO SPECIAL RULES APPLY IF THE HEALTHCARE PROVIDER COMES UNDER THE PRESUMPTION WHICH DO NOT APPLY TO REGULAR WORKERS' COMPENSATION CASES FOR HEALTHCARE PROVIDERS?
A: Yes. There are different time frames within which the employer must either accept or reject the Healthcare Provider's COVID-19 claim. And there are also additional criteria, as noted above, as to what would constitute a valid positive COVID-19 test.
Q: CAN MY EMPLOYER REBUT THE PRESUMPTION AND SHOW THAT THE HEALTHCARE PROVIDER DID NOT GET COVID-19 AT WORK?
A: Yes. There are always ways in which the employer can rebut the presumption the COVID-19 contracted by the healthcare provider was actually obtained through work. For Healthcare Providers, the facilities have additional statutory-provided grounds to rebut the presumption. If the healthcare provider does not have direct patient care or is a custodial employee who is not in contact with COVID-19 patients, then the employer/healthcare facility can rebut the presumption by establishing that the healthcare provider did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19.
In addition, even without this statutory noted exception (which is really just a common-sense defense provided in the statute), the employer can always attempt to obtain evidence and facts indicating the COVID-19 diagnosis of the healthcare provider actually originated from somewhere other than work, such as family members at home or others living in the household.
Q: IF I AM A HEALTHCARE PROVIDER BUT I DO NOT FALL UNDER EITHER PERIODS OR TERMS COVERING THE PRESUMPTION AS PROVIDED FOR IN THE NEW LAW, CAN I STILL FILE A WORKERS' COMPENSATION CLAIM FOR MY COVID-19 DIAGNOSIS?
A: Yes. The presumption just provides you a "leg up" on healthcare providers proving their claim. But that is not the only way you can prove you have contracted COVID-19 from your employment. Experienced attorneys will know how to assist in proving up the claim. While it certainly will not be easy to prove up without the help of the presumption, it is not impossible. Again, our experienced attorneys in handling complex workers' compensation exposure claims can advise you as to how to go about proving up your claim and will assist you in doing so.
At the law offices of McLaughlin & Sanchez, APC we have over 50 years or combined experience in handling complex workers' compensation exposure claims. If you believe that you contracted COVID-19 while on the job, contact us online or call us to learn about your legal rights.