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PROTECTING OUR PROTECTORS (FURTHER COMMENT ON THE COVID-19 PRESUMPTIONS)Clearly, with all of the people who have become infected with COVID over the last several months, many of them become infected as a result of being exposed to someone in their job who already had this insidious virus.  This could have been as a result of contact with a co-worker, a customer, or someone they provided care for while on the job.  Unfortunately, proving exactly where or how these people became infected is essentially an impossible burden.  And, without the assistance of the State Legislature, many of these COVID positive workers who have suffered from illness, injury or even died as a result of exposure to COVID would essentially have had no recourse for themselves or their families given this nearly impossible task of proving how they acquired the COVID virus.

Fortunately, however, the State of California stepped in to protect essential workers who risked their own health, as well as that of their families, to make sure that we all could continue to live in comfort, continue to receive food, goods, supplies, shelter, access to utilities, transportation and medical care (to name but just a few) during this pandemic.

In the Workers’ Compensation System, this help came in the form of three statutes that, if certain conditions are met, create a presumption (or finding) that the individuals COVID infection was in fact work-related, without having to first prove the exact source of the infection.  The statutes I’m referring to in this article are Labor Code Sections 3212.86, 321287 & 3212.88:

  • 86 – This section provides a rebuttable presumption of occupational COVID-19 14 days after performing services at their place of employment through 1/1/2023.
  • 87 – This section provides the occupational injury presumption to a variety of “front line workers” which includes (but is not limited to) certain firefighting members and peace officers, as well as healthcare workers. A variety of such workers are covered under this statute and the covid-related illness or death is presumed to have arising out of and in the course and scope of employment, once certain conditions under the statute are met.
  • 88 – Creates a workplace presumption for other workers again when certain conditions are met, the most significant of which is when a positive COVID test occurred during an “outbreak” at the place of employment. This outbreak is defined by either the number or percentage of employees who tested positive or whether the place of employment was closed down by certain local or state officials due to the risk of infection.

Again, the significance of these presumptions is that, in the typical worker’s compensation case, the burden of proof is upon the injured worker to show the injury or illness arose out of and in the course of employment.  In this case however, if you or a loved one falls under one of these presumptions, you do not have that burden.  Rather, the burden of proof shifts to the defendant employer, insurance carrier to show that the source/cause of the COVID was not from or connected with the job or place of employment.  This will, by its very nature, be a nearly impossible burden now, not for the injured workers, but for the employer or their insurance carrier.

It’s good to know that, at least in this case, those who protected us are being protected!

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