Employees in offices not following social distancing protocols may be putting their coworkers at risk for COVID-19. (Shutterstock)

Employees in offices not following social distancing protocols may be putting their coworkers at risk for COVID-19. (Shutterstock)

Workers’ compensation could cover COVID exposure

Employees may claim benefits under certain criteria

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By Christopher B. Dolan and Megan Irish

This week’s question comes from Brenna in San Leandro who asks: My employer still isn’t taking COVID-19 seriously! We have the most basic safety measures at our office, and people take their masks off all the time, regardless of where they are in the shared office space or other offices. My coworkers are posting pictures all over social media of themselves out at bars and in large groups, without wearing any masks; they aren’t social distancing. I think people are faking their temperatures when they come in to work, and then they are telling people they “just have a stomach bug.” I’m terrified of getting sick. My family and I are taking every precaution we can. My kids are home schooling, we wear masks, and have stayed away from large crowds, even though it meant missing our traditional Thanksgiving with all my brothers’ and sisters’ families. This is not to mention all the summertime activities we did not engage in this year. I’m limiting my exposure opportunities and I’m washing my hands regularly, so if I get sick I’m positive it’ll have come from my office. Would my employer be held responsible? Am I covered by workers compensation?

Dear Brenna: I’m so sorry to hear that despite all the evidence available and the incredible loss of life our country has suffered you are working in an environment where your coworkers are not taking the pandemic seriously. Recently there was a law signed by Gov. Gavin Newsom that codified the executive order he issued back in May. It is called Senate Bill 1159 and it codifies the presumption that an employee’s illness related to the coronavirus is an occupational injury, and if particular criteria are satisfied, then the injured worker would be entitled to workers compensation benefits.

There are specific categories of workers that this rule protects, which includes first responders and health care workers, but the coverage would also be triggered if there is an “outbreak” at an office. An “outbreak” is found if, within 14 days, any of the following three scenarios are met: 1) if an employer has 100 employees or less, and four employees test positive, 2) if an employer has 100 employees or more, and 4 percent of the employees test positive, or 3) a place of employment is shut down by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection for COVID-19.

This law should encourage employers to comply with, and enforce the local health orders and guidelines appropriate to their office. Any efforts the employer makes to protect its employees will be evidence the employer can introduce to counter the presumption that the illness an employee claims came from the workplace.

Each of their efforts will be a tool to use against an employee’s claim. The less the employer has done to protect its workers, the less the employer will have to argue the infection did not come from the workplace. If the standards are met, and the presumption has been triggered, the employer will bear the burden to prove the injury did not come from the office.

Workers, however, must make efforts at home to stay safe. The employee’s efforts will provide them with evidence that supports the presumption that the infection came from the office. So workers, such as yourself, should continue to make sure you are following the suggested safety measures, including wearing a mask, washing your hands, avoiding crowds and social distancing when you do have to go out. Taking these steps will be your evidence to contradict efforts made by the employer to claim the source of your infection is outside of the office.

If an employee becomes sick, they can request a workers compensation claim form from their workplace. Employers are required to give their employees the form. Here is a link with information on filing a claim form: https://www.dir.ca.gov/dwc/InjuredWorker.htm.

However, feeling sick isn’t enough to qualify for these benefits. For this coverage to apply workers need to have their diagnosis confirmed by an approved Polymerase Chain Reaction test. A PCR test confirms a current infection as opposed to an antibody test which shows the worker suffered a previous infection. The test itself is looking for the presence of the viral RNA. If your doctor encourages you to self-quarantine and treat at home, keep in mind the absence of a test-based diagnosis may preclude your opportunity to make a claim for workers compensation benefits.

If you believe your infection came from work and you would like the option of making a claim for these benefits, make sure you get a test approved by the U.S. Food and Drug Administration. Workers should keep copies of all their medical records to use in the claim process. Even if a worker’s illness does not meet the criteria to establish this presumption, it may be deemed related to their work if the worker can provide enough evidence of it.

Despite having a potential compensation claim, instead I hope you stay healthy.

Christopher B. Dolan is the owner of the Dolan Law Firm. Megan Irish is a senior associate attorney in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com. We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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