July 5 has come and gone, meaning that Gov. Gavin Newsom’s executive order is effectively over – or is it?
Senate Bill 1159 is the new frontrunner among the four contending bills to create a presumption that COVID-19 cases are industrial, and it was recently amended to mimic the governor’s executive order. The state Senate approved it on June 26 and sent it to the Assembly, where the Assembly Insurance Committee will take a look and most likely approve it.
The reason why people smarter than me presume the Assembly Insurance Committee will approve the bill is because Assemblyman Tom Daly (D-Anaheim) signed on as a coauthor to the bill, and Daly is the chairman of the committee.
Shortly after our last post about SB 1159, lawmakers amended the bill so that it mimics Gov. Newsom’s executive order. In other words, the bill creates a rebuttable presumption for people who have a positive COVID-19 test within 14 days of going to work, and defendants have a 30-day decision timeframe to either accept or deny the claim.
Negotiations are apparently ongoing to broaden the scope of the presumption to dates of injury beyond the March 19 – July 5 timeframe for the original executive order, according to this WorkCompCentral article that quoted Gideon Baum, the principal consultant for the Senate Labor, Public Employment and Retirement Committee.
Many of us always believed that Gov. Newsom wanted some kind of presumption of compensability for COVID-19 claims, and we here at Bradford & Barthel were not surprised to see the governor’s executive order on May 6.
With the infection rate back on the rise again and mounting pressure for politicians to keep the economy open, Baum’s comments make sense. Therefore, anticipate that SB 1159 or one of its other competitors will be amended in July with a new end date.
Some of you may be asking, “Okay, but why haven’t they done all this stuff already? July 5 was last weekend.”
One factor that delayed things for the time being is that the state Assembly is on recess until July 13. Pandemic or not, who wants to give up their vacation time? Lawmakers don’t.
Secondly, cases are unfortunately back on the rise, which may force lawmakers to reconsider the scope and extent of their presumption. Med-legal expert Dr. Eli Hendel recently estimated during a MCLE presentation that a majority of LA County’s population could easily be infected by Dec. 1, 2020 if the infection rate keeps rising.
When double-checking his estimates, it became clear to me that these scary estimates were derived from the presumption that each infected person will infect several more people, which could easily drive exponential growth, also known as “the curve.” Long story short, the data shows that we need to “flatten the curve” again or run the risk of most of Los Angeles County contracting the virus before the end of the year.
What does that have to do with a presumption? Well, as you’ve noticed, plenty of businesses are going under and layoffs are happening left and right.
In fact, the layoffs have even hit the workers’ compensation industry – I’ve heard of at least one carrier laying off longtime employees, and I can think of several applicants’ attorneys’ offices that have laid off reliable employees. Apparently decreasing claim volume has driven some of these layoffs, as many of the service industry jobs simply disappeared due to the stay-at-home orders. Fewer jobs means fewer claims.
I’m hopeful that lawmakers will not make the workers’ compensation carriers foot the bill if most of society gets infected. I’m hopeful that lawmakers’ concerns about massive financial ruin for employers and carriers could be another reason for the pause.
But when lawmakers do return on July 13, they will most likely get moving rather quickly because Aug. 7 is the last day for policy committees to meet and report bills. August 17 through 31 is reserved for floor session only, and Aug. 21 is the last day to amend bills on the Assembly floor.
In summary, we can expect some fast action on SB 1159 and other COVID-19 presumptions by early-to-mid-August.
And if that doesn’t happen, well Gov. Newsom could always issue a new executive order that extends the old one. But I believe that we will see some action before it comes to that.
So keep on checking back, and we will be sure to keep you posted as these events unfold. As a former executive editor of mine used to say with a chuckle, “May you live in interesting times. And be careful what you wish for.”
Got a question about workers’ compensation defense issues involving the coronavirus? 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 firstname.lastname@example.org or at (818) 654-0411.
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