Protecting Women on the Frontlines of COVID-19

Protecting Women on the Frontlines of COVID-19

By Neelu K. Khanuja, Esq., Founding Attorney at Khanuja Law

 Published in the March 2021 issue of the Women Lawyers Association of Los Angeles Newsletter

According to a study conducted by the World Health Organization in 2019, seventy percent of health workers and first responders are women. Forty percent of all employed women are in other sectors, such as food, retail and entertainment, which COVID-19 has also significantly impacted per a 2020 report by UN Women. Based on the foregoing, UN Women assessed the increased exposure to women in the essential sectors and found working women to be at high risk for a COVID-19 infection. For example, it was reported that the infection rates for women in the healthcare industry are three times higher than the corresponding rates for their male colleagues.

Additionally, the same report found a sixty percent decrease in the average working woman’s income during the first month of the pandemic. Working women are on the frontlines of the COVID-19 crisis and as a whole face residual economic, social and health issues, such as job loss or decreased income, high risk of infection and lack of childcare, as a result of it. Accordingly, protective safeguards need to be in place for women to survive the pandemic and to decrease the resulting economic, social and health-related consequences. During this unpredictable and challenging time, California Governor Newsom has created the necessary protections for the injured worker who has contracted COVID-19 on the job.

On September 17, 2020, Governor Newsom signed SB 1159 into law expanding on the rebuttable presumption created from Executive Order N-62-20 to include illness or death resulting from COVID-19 to be compensable for any employee and establishing two new presumptions pertaining to frontline employees and employees who contracted COVID-19 during a workplace outbreak on or after July 6, 2020 through January 1, 2023, resulting in the addition of three (3) Labor Code sections. Labor Code §3212.86 codifies Executive Order N-62-20 that created a rebuttable presumption that an employee who was diagnosed with or tested positive for COVID-19 between March 19, 2020 through July 5, 2020 contracted the virus on the job. SB 1159 extends the presumption to encompass an illness or death related to COVID-19 to be compensable if the following four conditions are met:

1) The employee has tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;

2) The last day the employee worked at the employer’s direction at his or her place of employment was on or after March 19, 2020 and on or before July 5, 2020;

3) The place of employment was not the employee’s home or residence; and

4) The COVID-19 diagnosis was made by a licensed physician and surgeon holding a M.D. or D.O. or a supervised state licensed physician assistant or nurse practitioner. The diagnosis is confirmed by testing or by a COVID-19 serologic test within thirty (30) days of the date of the diagnosis

Labor Code §3212.87 creates an industrial causation presumption for frontline employees who have contracted COVID-19 in the workplace, including illness or death resulting from COVID-19, between July 6, 2020 and January 1, 2023. The frontline employees covered under this presumption are the following, including but not limited to: firefighters, peace officers, rescue service coordinators, peace officers, health facility employees, registered nurses, emergency medical technicians, emergency-medical technician-paramedics, employees providing direct patient care for a home health agency and providers of in-home supportive services. For the presumption to apply, the aforementioned employees must establish the following conditions:

1) They performed labor or services at their place of employment, not their home or residence, at the employer’s direction on or after July 6, 2020; and

2) The employee has tested positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.

Labor Code §3212.88 establishes an industrial causation presumption for employees who are not frontline workers but who test positive for COVID-19 during an outbreak at their place of employment if it has five or more employees. The injury for the presumption encompasses illness or death resulting from COVID-19. For the presumption to apply, the employee must establish the following conditions:

1) The employee tests positive for COVID-19 within 14 days on or after July 6, 2020 that the employee performed labor or services at the employee’s place of employment at the employer’s direction; and

2) The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

SB 1159 adequately addresses the vulnerabilities in the workers’ compensation system that arose during the pandemic. Through SB 1159, Governor Newsom created the necessary safeguards to protect the countless working women who have contracted COVID-19 on the job.