Q: ARE CORRECTIONAL OFFICERS 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. The law is broken down into two separate time-based presumptions, however. The proof needed to invoke the presumption for the two presumption periods differs for each case. Moreover, the presumption defines what types of employees the new presumption law covers. The two periods are:
- The first presumption time period covers the period of 3/19/20 through 7/5/20. Governor Newsom initially signed his presumption order regarding COVID-19 during this period. This is when employees were working during March, 2020, when the first phase of the shutdown began.
- The second presumption time period took effect on 7/6/20 and will continue through 12/31/22. Recently diagnosed Correctional Officers with COVID-19 will fall under the second time frame presumption.
Q: UNDER THE SECOND PRESUMPTION PERIOD, WHAT CORRECTIONAL OFFICERS ARE COVERED?
A: For the most part Correctional Officers will be covered under the first and second presumption periods.
Q: WHAT DO CORRECTIONAL OFFICERS HAVE TO PROVE IN ORDER TO COME UNDER THIS SECOND PRESUMPTION PERIOD?
A: First, the correctional officer must test positive for COVID-19 within 14 days of working for their employer at their employer's place of employment. For most correctional officers, this won't be a problem. Second, in order for a COVID-19 test to be considered valid under the presumption law, it must meet certain criteria. For example, antibody testing won't be considered valid to prove a positive COVID-19 test. But under the first presumption period, it is.
Q: DO SPECIAL RULES APPLY IF THE CORRECTIONAL OFFICER COMES UNDER THE PRESUMPTION WHICH DO NOT APPLY TO REGULAR WORKERS' COMPENSATION CASES FOR CORRECTIONAL OFFICERS?
A: Yes. The employer must accept or reject correctional officers' COVID-19 claims during different time frames. COVID-19 test must also meet certain criteria.
Q: CAN MY EMPLOYER REBUT THE PRESUMPTION AND SHOW THAT THE CORRECTIONAL OFFICER 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 correctional officer was actually obtained through work. The employer can attempt to obtain evidence and facts indicating the COVID-19 diagnosis of the correctional officer actually originated from somewhere other than work, such as family members at home or others living in the household.
Q: IF I AM A CORRECTIONAL OFFICER BUT I DO NOT FALL UNDER THE PERIODS 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 proving your 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. It won't be easy to prove up without the help of the presumption, but it can still be done. Our legal team has experience in handling complex workers’ compensation correctional officer exposure cases. We can advise you as to how to go about proving up your claim and can 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. Contact us online to schedule your free case review.