As the California Legislature winds down its session, we are left with two bills having as their effect the continuation of the COVID-19 state of emergency as it existed two years ago. That, even though it seems that the Centers for Disease Control and Prevention (CDC), the State of California, and local health departments have moved on from the crisis as it existed in 2020.
Assembly Bill 1751 (Daly), extending the presumption of compensability for COVID-19, may get passed and chaptered. Its architecture was designed with the expectation – correctly – that the world in 2023 would be different than it was when the bill was originally chaptered in the form of Senate Bill 1159 (Hill). The new sunset for this presumption would be January 1, 2025.
Assembly Bill 2693 (Reyes) extends certain reporting and notification requirements regarding COVID-19 and continues Cal/OSHA’s authority to disable an operation or process at a place of employment when the risk of COVID-19 infection creates an imminent hazard. AB 2693 was preceded in 2020 by Assembly Bill 685 (Reyes) and in 2021 by Assembly Bill 654 (Reyes). AB 2693 is awaiting action on the Senate Floor. It too would sunset, again, on January 1, 2025. It too may pass and get chaptered.
And so, the presumption and reporting requirements may remain for at least the next two years. Rather than acknowledge the “endemic” phase of COVID-19 and its existence as a community-based exposure, the Legislature seems intent on keeping a status quo that will have been long gone before the effective date of these laws, should they be signed by the Governor.
In the words of the business coalition opposing much of AB 2693, “A COVID-19 case is no longer the same risk it once was due to increased vaccination and immunity in the population. Extending emergency-level notice until 2025 just doesn’t make sense.”
According to the author of the bill, Assembly Majority Leader Eloise Reyes (D-San Bernardino), “We must be prepared to react immediately to future variants of COVID-19. This bill will aid in stopping the spread of future variants and informing workers of workplace exposures so they can protect themselves and their families by extending the sunset on workplace reporting and notification of COVID-19 cases.”
The challenge is which of these positions will prove better reflective of the needs of the State on and after January 1, 2023?
This debate is a reflection of the realpolitik that has come to characterize the approach to workers’ compensation and safety legislation. Everything is on the table from one year to the next. That is the unintended consequence, at least sometimes, of placing sunsets in legislation. So, until someone (Governor) convenes a meeting with labor and management to address workers’ compensation changes (and please do not call it reform) nothing is off the table. That extends to safety issues as well, as evidenced by the current regulatory activities regarding COVID-19 at Cal/OSHA and the Standards Board.
How this dynamic manifests itself in the next two weeks is the stuff of rampant speculation. This is particularly the case with the recent guidance from the CDC calling into question the wisdom of extending presumptions as they exist in AB 1751 and the broad reporting and notification requirements of AB 2693 into 2025. We will know more in a couple of weeks, or a month or so if both bills go to the Governor. Or maybe two years from now when all this comes up again.
Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.