California lawmakers sent a smorgasboard of smaller workers’ compensation bills to the desk of Gov. Gavin Newsom, and he will have until the end of September to sign or veto them.
Two of the most important bills that were sent to the governor’s desk include Senate Bill 284 and Assembly Bill 1751. SB 284 would expand a presumption that post-traumatic stress disorder is industrial, by adding to the list of first responders eligible for the presumption. The bill would add firefighting members and security officers of various state and federal departments to the PTSD presumption, and was presented to Gov. Newsom on Sept. 6.
AB 1751 would extend the Covid-19 presumptions “sunset date” to Jan. 1, 2024. Without this bill, the presumptions would expire at the end of this year on Dec. 31, 2022. To be clear, the presumptions that would be extended would include the Covid-19 first responder presumption found in LC 3212.87, and the “outbreak” presumption in LC 3212.88. (It also includes the rarely-used LC 3212.86 presumption, which is only applicable to dates of injury between March 19, 2020 and July 5, 2020.) The outbreak presumption in LC 3212.88 is notable because it requires employers to track which employees test positive, and to regularly report positive tests to their workers’ compensation administrators.
Please note that in the weeks after this article, Gov. Newsom will sign or veto these bills, so they are not law as of the date of publication. Bradford and Barthel will publish a recap of what was signed and vetoed in October of this year, as sometimes it is unclear whether bills were signed or vetoed until early October. Our friends at WorkCompCentral have been covering this year’s legislative session in great detail, and you can read their write-ups here.
Some of the other bills sent to the governor’s desk include the following:
- Senate Bill 1127 – This bill originally got lots of press (and worried looks by administrators) by proposing drastically-reduced decision timeframes, but was later amended to only make one reduction – it would reduce the decision timeframe on first responder presumption claims from 90 days to 75 days. These presumptions include presumptions for cancer, pneumonia, tuberculosis, bloodborne infectious diseases, low back, and Lyme Disease. The version of the bill sent to the governor’s desk would also increase the penalty for a unreasonable denial of a presumption claim up to $50,000. The current penalty is up to $10,000.
- Senate Bill 1242 – This bill would require insurers to report suspected fraud within 60 days of it occurring. It would also require brokers or agents to report suspected fraudulent claims to the Fraud Division’s Consumer Fraud Reporting Portal. The bill also has language protecting agents and brokers from civil liability as long as they can show they acted in good faith. It would also require brokers, agents, and adjusters to take one hour of continuing education credits focused on the topic of insurance fraud. Lastly, the bill also contains more minor requirements affecting insurance pools, certifications, and disclosures.
- Senate Bill 1002 – This bill would permit medical provider networks to list licensed clinical social workers to be listed in insurers’ medical provider networks (MPNs). Under the bill, they would not be able to determine permanent disability. The intent of this bill is to expedite mental health care to people who need it, in the event that psyche treatment is scarce. Backers of the bill also argue that social workers are in a good position to be able to recommend more extensive treatment with a psychologist or psychiatrist, if more comprehensive treatment is needed.
- Assembly Bill 151 – AB 151 would codify a collective bargaining agreement between the state and a union to extend salary continuation benefits to Department of Forestry and Fire Protection firefighters in Bargaining Unit 8. Under the bill, if a firefighter in that unit has a severe burn as defined by CalFire, the employee could receive up to three years of salary continuation benefits. (*Update: This was approved on Sept. 6 by Gov. Newsom.)
- Assembly Bill 2188 – AB 2188 would bar employers from discriminating against employees who use cannabis away from the workplace. Employers in the building and construction trades are exempted from this bill’s provisions, as are any employers of employees whose line of work requires a federal background investigation. The bill does not preempt any federal or state laws that mandate drug testing as a condition of employment. To be perfectly honest, this bill doesn’t do much that is new – if an employer was going to bring a intoxication defense, they have to establish that the employee was intoxicated at work anyways. This bill does not affect an employer’s intoxication defense, what it does punish is discrimination against employees who were clearly not intoxicated at work.
- Assembly Bill 1643 – This bill would require the state to create an advisory committee to study and evaluate the effects of heat on workers, businesses, and the economy. The state would have until July 1, 2023 to create the committee, and the committee would have to create a report by Jan. 1, 2026.
- Assembly Bill 334 – AB 334 would expand the presumption that skin cancer is presumed to be industrial in nature, unless the presumption is rebutted. The presumption currently applies to active lifeguards. If signed into law, it would expand the presumption to peace officers of the Department of Fish and Wildlife and the Department of Parks and Recreation.
- Assembly Bill 2848 – AB 1848 would force the DWC to provide lawmakers with its official analysis of the utilization review changes implemented by SB 1160 back in 2016. SB 1160 was an omnibus bill from 2016 that had many provisions. One of those provisions had called for the DWC to hire an outside consultant to review and evaluate the provision of medical care during the first 30 days after a claim was filed for claims from 2017 through 2019. This bill would expand the timeframe for claims subject to analysis to claims filed between 1/1/17-1/1/21. AB 2848 would require the DWC to present that report to the Assembly Committee on Insurance and the Senate Committee on Labor and Industrial Relations no later than July 1, 2023.
- Assembly Bill 1681 – This bill would allow the Insurance Commissioner and their deputies to meet with insurers and employers to discuss suspected, anticipated, or completed acts of insurance fraud. It also has civil liability protections for meeting participants, as long as the parties to the meeting do not have fraud or malice.
- Senate Bill 216 – SB 216 would require all concrete, heating, air conditioning, HVAC, asbestos abatement, and tree service contractors to carry comp insurance even if they have no employees.
Again, please note that these bills are not final until Gov. Newsom signs them into law. Sometimes, the most interesting part of the legislative year is seeing a governor’s reason for vetoing a bill. Why? Those explanations often contain language that suggests how the same governor will react to similar bills with similar language during next year’s legislative session. So stay tuned, and we will have a new legislative update for you in a month, recapping what was approved and what was vetoed.
Got a question about workers’ compensation defense issues or pending legislation? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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