There are three pending creating a workers’ comp presumption concerning COVID-19 being automatically work-related for certain employees. The bills are newly amended and awaiting review by both Houses. However, work in the Senate is strange because Senator Brian Jones (R-Santee) tested positive for the virus, which originated in Wuhan China. Yesterday’s Senate floor session was canceled while contact tracing teams do their work.
Senate Pro Tem Toni Atkins (D-San Diego) said in canceling yesterday’s floor session, “The Senate will be prepared to continue our work when we have completed public health protocols to ensure that the risk of exposure has been eliminated.”
Insiders tell Workers’ Comp Executive that negotiations remain on-going and additional amendments will be forthcoming. Expectations are that the push and pull will go down to the wire. The legislature must wrap up its business by the end of the month.
Pending in the Senate are AB 196 by Assemblyman Lorena Gonzalez (D-San Diego) and AB 664 by Assemblyman Jim Cooper (D-Elk Grove).
AB 196 sought a conclusive presumption of compensability initially but was just amended to create a rebuttable presumption. Experts questioned the constitutionality of the initial plan for a conclusive presumption.
The bill would create a presumption for defined essential workers but specifically exempts fire, police, forestry, and healthcare workers. The presumption would require a positive COVID-19 test within 14-days of when the employee last worked. The bill excludes an employee’s home or residence from the definition of place of employment. The bill gives employers only 30 days to reject a COVID-19 claim. The normal claims process allows a 90-day review.
AB 664 applies to public safety officers and healthcare workers who provide direct patient care at acute care hospitals. It was amended to include a July 1, 2024 sunset date. The bill, an urgency measure, is now limited to COVID-19 claims. Initially, it would have applied a rebuttable presumption to any infectious disease outbreak that creates a public health emergency. The bill also requires covered employers to provide emergency equipment or personal protective equipment to employees. It, too, has a 30-day claim review window.
The Assembly held its floor hearing but opted to pass and retain Sen. Jerry Hill’s (D-San Mateo) SB 1159 in its third reading file for review another day.
It largely codifies Governor Gavin Newsom’s now expired executive order for essential employees. Amendments to SB 1159 bring back a controversial “5 and 5” provision defining a workplace “outbreak” of COVID-19 for triggering the presumption in the majority of private workplaces that were closed during the shelter-in-place order. The provision is vehemently opposed by employers and was struck from the bill at the last policy committee hearing only to come back again.
Under the provision, the presumption would trigger if at least five employees test positive for COVID-19 over two weeks in a workplace with 5 to 100 employees. For larger employers, an outbreak would be designated if 5% of the workforce tests positive over 14 days. Employers with fewer than five employees are exempt. Employers in these situations would have 45 days to review the claim.
The amendments do specify that “evidence relevant to controverting the presumption may include, but are not limited to, evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.” The amendments also trimmed a year off of the presumption’s length with a proposed sunset date now set on January 1, 2023.
The amendments also introduce a reporting requirement giving employers three days to report a COVID-19 case to their workers’ comp claims administrator. The bill provides employers a 30-day window to accept/reject a claim from workers deemed essential under Governor Gavin Newsom’s now expired executive order. The review period is 45-days for all others. The amendments also call on the Commission on Health, Safety and Workers’ Compensation to study the impact of COVID-19 claims on the workers’ comp system and to report preliminary findings by the end of 2021.