May 18, 2020 – Updated – Ferrone & Ferrone (FF) attorneys are fielding hundreds of phone calls from public safety associations and officers throughout the state, who are all struggling to manage the COVID-19 pandemic. The most common question that is arising is whether an employer may unilaterally implement a new policy, requiring union members to quarantine away from work, all while footing the bill. In other words, our first responders are told to go home and quarantine and utilize their own paid time off, rather than receive regular full pay and benefits.
Workers’ Compensation
In the event a peace officer is unable to work due to COVID-19 exposure or infection, the first thing they should do is file a workers’ compensation claim form (DWC-1) as soon as possible.
If a public safety officer is exposed to the coronavirus while on duty, they should be entitled to benefits under Labor Code Section 4850. This allows certain law enforcement officers and first responders to receive full payment of their salary, not to exceed one year within a five-year period from the date of injury, if disabled from an injury or illness incurred in the course of performing their duties.
Per the Governor’s Executive Order dated May 6th, COVID-19 is now considered presumptive.
The Order provides:
Any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of the employment for purposes of awarding workers’ compensation benefits if all of the following requirements are satisfied:
- The employee 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;
- The day referenced in subparagraph (a) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020;
- The employee’s place of employment referenced in subparagraphs (a) and (b) was not the employee’s home or residence; and
- Where subparagraph (a) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis. 2) The presumption set forth in Paragraph 1 is disputable and may be controverted by other evidence, but unless so controverted, the Workers’ Compensation Appeals Board is bound to find in accordance with it. This presumption shall only apply to dates of injury occurring through 60 days following the date of this Order.
The officer will need to also address the following:
- Employer’s Report of Occupational Injury or Illness (Form 5020): Law enforcement personnel who come into contact with an individual who is COVID-19 positive should immediately complete an Employer’s Report of Occupational Injury or Illness Form. The employee should include as much detail as possible, including the manner of exposure (arrestee cough of aerosol into your face), amount of time of exposure (six minutes during arrestee transport) and area of the exposure (6-feet-by-6-feet interview room). Including such details will help the law enforcement officer later be able to better recall specific details of the exposure or events leading up to an infection.
- Document everything: Additionally, an officer can maintain a daily log of movements, interactions and travels. A detailed log may assist in eliminating or establishing possible exposure or high-risk scenarios that could lead to a COVID-19 infection. As your workers’ compensation case progresses and you find yourself in a deposition, you will (with the use of your notes) be able to better testify about your work duties that may have caused your COVID-19 infection.
If work-related exposure is found, the full extent of workers’ compensation benefits would be available. These would include total temporary disability (TD) payments and medical treatment paid for by the insurance. For some safety and law enforcement officers, 4850 salary continuation benefits would apply. For TD, payments would begin when your doctor says you can’t do your usual work for more than three days or you are hospitalized overnight. You may be entitled to TD for up to 104 weeks. TD stops when you return to work, your doctor releases you for work or your doctor says your illness has improved as much as it’s going to.
If the workers’ compensation claim is delayed or denied, the member should be allowed to utilize sick leave, following their respective memorandum of understanding (MOU) contract and/or department policy. In the event a member does not have adequate sick leave accumulated, the department could potentially elect to place the member on paid administrative leave to ensure they do not go without a paycheck while battling the virus. Some agencies are providing additional leave benefits (e.g., 80 hours of sick time) to address the issue.
AOCDS, along with several other law enforcement associations, has sent a letter to Governor Gavin Newsom, urging him to work with lawmakers to enact an emergency presumption for COVID-19 addressing first responders, either through legislation or by executive order. The presumption bill is currently pending.
Ferrone & Ferrone stands with its first responders, and is ready to address any issue that arises on a moment’s notice. FF has further launched a COVID-19 Task Force for Public Safety leveraging the firm’s broad experience and extensive roster of battle-tested legal advisors to assist public safety organizations and members with this unprecedented crisis. For further questions about this issue, or any other, do not hesitate to contact FF.
