News Alert: NO MORE COVID-19 PRESUMPTION IN 2024

On September 17, 2020, Labor Code section 3212.87 created a rebuttable presumption that
certain public safety officers, first responders, and healthcare workers infected with COVID-19
would be entitled to California Workers’ Compensation benefits. This law also created the
presumption that an illness or injury from COVID-19 infections is caused by the jobs in those
categories.   The infected employee had to test positive for COVID-19 within 14 days after the
day that the employee performed labor or services at the employer’s place of employment at the
employer’s direction. Additionally, the COVID-19 Presumption only applied if the positive test
was a PCR (Polymerase Chain Reaction) test approved for use by the US Food and Drug
Administration.

The legal term for a work-caused injury is “Industrial Injury.” Industrial injuries must be proven
by the worker to “arise out of employment” (AOE) or have occurred in the “course of
employment” (COE). According to the California Department of Industrial Relations, proving
the injury was AOE/COE means that the illness/injury was caused by or happened on the job
(AKA “industrial causation”). Since the COVID-19 Presumption was created first by the
California Governor’s Executive Order in 2020 and later that same year in Labor Code 3212.87,
many workers could more easily prove they got infected by COVID-19 while on the job, which
led to approved workers’ compensation benefits.

Unfortunately, this COVID-19 Presumption law was repealed on January 1, 2024, and no new
California law was enacted to extend the expiration date. So, as of New Year’s Day 2024, there is
no longer a COVID-19 Presumption to benefit those workers. This leaves many to wonder, if
there is no COVID-19 Presumption, how will they get worker’s compensation benefits if they
get infected with COVID-19 on the job?

A 2023 case provides renewed hope and help for proving a job caused a worker’s COVID-19
illness or injury (Gallegos v. The Dougherty Co./Property & Cas, Ins. Co. of Hartford (2023)
(WCAB) 51 CWCR 121.) This case reaffirms two Spanish Flu case findings in 1920 that
workers have an increased risk of infection at work, which is greater than the risk the general
public faces (City and County of San Francisco v. IAC (Slattery) (1920) 183 Cal. 273; Engels
Copper Mining Co. v. IAC (Rebstock) (1920) 183 Cal. 714.)

In Gallegos, the California Workers’ Compensation Appeal Board (WCAB) upheld the trial
court’s decision that the worker proved her COVID-19 illness injury was caused by exposure at
her job. The WCAB also agreed with the trial judge that witness testimony and medical evidence
supported a finding that the employment setting had placed the employee at a higher risk of
contracting COVID-19 than the general population.

Ms. Gallegos worked in an open area and had close contact with a co-worker who had displayed
COVID-19 symptoms for three (3) days before taking time off and later testing positive for COVID-19. Ms. Gallegos submitted into evidence a report based on contact tracing written by her treating physician in Internal Medicine. Additionally, a Qualified Medical Examiner (QME) report stated the QME’s opinion that it was “reasonably medically probable” that Ms. Gallegos contracted COVID-19 during her employment due to the increased risk of exposure because of her infected co-worker. This critical report proves the legal standard of “reasonable medical probability” that the worker’s infection was caused by work exposure to the virus.

Since the COVID-19 Presumption ended, proving a job caused a COVID-19 infection is now
more difficult. However, the Gallegos case creates recent precedent that can support other
workers’ claims that their COVID-19 infection was caused by a higher risk of exposure at work,
if it can be proven that the risk is higher than the general public. To do so, a worker must present
reliable medical evidence (including medical records, reports, and testimony). This evidence
must prove a “reasonable medical probability” standard that the worker faced a risk greater than
the average population and that exposure to risk at work caused their COVID-19 illness or injury.
Based on the Gallegos ruling, the three (3) required elements are below.

1. The infected employee must have a positive PCR test result for COVID-19 within 14
days after the day the employee has performed labor or services at the employer’s place
of employment at the employer’s direction.

2. The infected employee must prove they had close contact with a co-worker or member of
the public during their job who has a confirmed COVID-19 infection at the time of the
contact.

3. The infected worker must submit an opinion by a medical professional to a reasonable
medical probability that, based on the first two (2) elements above, the employee’s
COVID-19 infection was contracted while performing their job duties.

The specific facts of each COVID-19-infected worker’s case are now more critical than ever. If
you believe you have a valid Worker’s Compensation Claim for illness or injury caused by
exposure to COVID-19 at your job in 2024, consult with one of our Workers’ Compensation
attorneys. Your individual case should be analyzed considering the recent ruling in Gallegos.  At
Mastagni Holstedt, A.P.C., our attorneys are dedicated to helping clients navigate California’s
complex Workers’ Compensation system.