Barthel and Kamin: Multiple Employers Over 14 Days (Who's Liable?)
Friday, May 22, 2020 | 512 | 0 | min read
Per Gov. Gavin Newsom's recent executive order, issued on May 6, employees who have a positive test result or diagnosis of COVID-19 within 14 days of performing work somewhere other than home at the direction of the employer may enjoy a broad rebuttable presumption that the infection is industrial.
While there are other requirements (diagnosis must have been performed by a physician who holds a physician and surgeon license issued by the California Medical Board; dates of injury must occur from May 6, 2020, through July 5, 2020; etc.), the requirements that the labor or services be performed "at the employee’s place of employment at the employer’s direction" seems clear.
But any good attorney can turn otherwise clear EOs into mush as clear as mud by asking questions, such as, "What can an employer do about an employee who tests positive, but has worked for two employers in the last 14 days? How do you determine who is responsible?"
First, set up the claim, investigate and then join the other party. Your investigation should address:
- Job duties at both employers.
- Potential exposures at both employers (that is, who the applicant interacted with).
- Timeline for days/hours/shifts worked at both employers.
- Symptoms, start date timeline, diagnosis, positive test result.
- Medical treatment start date.
- A litany of questions developed to determine time and place of exposure. You will find many such questions on slides 83-91 from PowerPoint used in B&B's webinar, "The Pandemic, the Claims Desk and You: How Will COVID-19 Impact W/C?"
- Subpoena the personnel file/wage statement/time cards from the other employer.
- Look up Workers' Compensation Insurance Rating Bureau info on the other employer.
- If more info from the other employer is needed, consider deposing its PMK (person most knowledgeable).
- Do a social media check (Google his Facebook page, just in case it's public).
- Anything else pertaining to who/what/when/why/how.
Depending on what your strategy dictates, the foregoing can be performed before, during and after the attempt to join the other employer and carrier.
Donald R. Barthel is a founding partner of Bradford & Barthel LLP as well as B&B's Rating & File Consultation Services. John P. Kamin is a workers’ compensation defense attorney at Bradford & Barthel’s Tarzana location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.