California lawmakers have proposed a rebuttable presumption that “critical workers” COVID-19 claims be presumed compensable, which could create unnecessary litigation if the specific terminology of the bill is not clarified.
State Sen. Gerald Hill (D-San Mateo), and Assemblyman Tom Daly (D-Anaheim) amended SB 1159 on April 22 to create the newly-proposed presumption. Perhaps the most important element of the presumption to note is that it is “rebuttable,” which means that if you can show that something nonindustrial caused the virus, then you can defeat the presumption that it is work-related.
The proposed bill would create a presumption that would apply to “critical workers,” which are defined as “someone who is employed to combat the spread of the virus.”
Who are critical workers? According to the bill’s language, they are:
- Someone who is in the service of an “essential critical infrastructure employer.”
- A public sector or private sector employee who is “employed to combat the spread of COVID-19.”
To put it simply, this is a little too vague in this blogger’s opinion. Why?
Well, who exactly is “employed to combat the spread of COVID-19?” I’m sure we can all agree that doctors, nurses, and paramedics are, and we can agree that a hospital would qualify as an “essential critical infrastructure employer.” But what about the people who help that group of doctors, nurses and paramedics do their job?
For instance, at a nearby hospital there are receptionists, construction workers who are adding to the hospital, various types of security guards, parking attendants, restaurant staff for the cafeteria, radiology techs, and so on.
I question whether everyone on that list is “employed to combat the spread of COVID-19.” And the problem is that I’m sure there is an applicant’s attorney out there who would disagree with me.
The other ambiguity is the phrase “essential critical infrastructure employer.” Does this mean the long list of “essential” businesses that got to stay open during the “stay-at-home” orders, like liquor stores and news media? I would argue that a liquor store is not a “critical infrastructure employer,” and I’m sure that there is an applicant’s attorney out there who would beg to differ.
The problem with this version of the bill is that it is vague as to who it applies to. There is no clear answer to the aforementioned questions, even though most of us could agree that a liquor store security guard is probably not a critical worker. Do we really want to dump thousands of cases on our workers’ compensation judges with this same question, and only a vague definition in the statute? That’s not exactly fair to the judges, the parties, or the practitioners.
More importantly, that’s not exactly a great use of taxpayer resources either – especially when the problem can be easily fixed by adding a few sentences of clarifying language to the bill.
(Fortunately, SB 893 does a better job of defining who that bill’s presumption applies to. Scroll down to read about that bill’s language.)
SB 1159: TESTS NOT REQUIRED
The bill also says that the presumption would apply to critical workers who either have a positive test result, or have a doctor stating that they have the virus. That is not going to be a problem out there for the vast majority of reputable doctors, but we could see abuse of that clause by the small percentage of doctors who don’t value their reputation so highly. (Dr. Nick, we’re looking at you.)
SB 1159: WHEN IT APPLIES WILL BE DECIDED LATER
Another section of the bill is intentionally incomplete at this time – it says that the presumption will apply to cases where significant lost time or hospitalization was “of at least ____ days due to the illness.” Should lawmakers pick a low number of days, that will result in a higher number of cases. Conversely, if lawmakers pick a high number of days, that will result in a lower number of cases.
The bill also contains a repeal date, which is the date the bill will cease being effective. However, the date of the repeal is currently left blank, for lawmakers to fill in later. I would not be surprised if that winds up being Jan. 1, 2022.
SB 893’S NEWLY AMENDED
We’ve previously covered Senate Bill 893 because it proposed an expansion of the bloodborne illness presumption for health care workers who work in preventative care. Since then, lawmakers have amended the bill to create a rebuttable presumption that nurses and health care workers’ claims are industrial.
The amended language clearly specifies that it applies to “hospital employee who provides direct patient care in an acute care hospital.”
The presumption also has quite a lengthy statute of limitations:
“This presumption shall be extended to a hospital employee following termination of employment for a period of three calendar months for each full year of employment, but not to exceed 120 months, beginning with the last date actually worked in the specified capacity.”
The bill also applies to other respiratory diseases besides COVID-19, including COPD, asthma, and “other respiratory diseases caused by novel pathogens.
Lawmakers specified that the type of compensation available under the rebuttable presumption “shall include, but not be limited to, full hospital, surgical, medical treatment, disability indemnity, and death benefits as provided by this division.”
Lastly, the bill contains a potentially problematic anti-apportionment clause which says that the respiratory disease shall not be attributed to a disease that existed before that development of the respiratory disease. This is troublesome because a) there are many hospital workers who still smoke or vape, b) smoking and vaping can also cause fibrosis and loss of lung tissue, c) smoking and vaping are clearly unrelated to serving the greater interests of the health care community.
Anti-smoking lobbying efforts have had a beneficial impact on our society by literally scaring people into not smoking by highlighting all of the horrible things decades of tobacco exposure can do to a person’s body. Pretending that health care workers who have smoked for decades do not suffer those same horrible side effects is disingenuous, plain and simple.
ALL PRESUMPTION BILLS HAVE A LONG WAY TO GO
To be clear, both SB 1159 and SB 893 are still in their initial committees, which will most likely be meeting in either May or June. The bills must go through multiple committees in the state Senate, before going for a floor vote. Then they would go through the same process in the Assembly before going up for a floor vote.
If there are differences between the Assembly’s and the state Senate’s version of the bills, then leaders from both the Assembly and the Senate can have a “conference” and figure out what version of the bill they want to send to the governor’s desk.
I have a hunch that Gov. Gavin Newsom is eager to approve some type of presumption, so if a presumption bill does make it all the way to his desk I’d imagine he will probably sign it unless it is seriously flawed.
In fact, rumors have abounded that Gov. Newsom intends to create a conclusive presumption of his own that would apply to all essential workers. As reported by WorkCompCentral, the California Farm Bureau Federation, U.S. Chamber of Commerce and other employer lobbyists have announced their opposition to a conclusive presumption in an attempt to get ahead of it. Without written confirmation of these proposals, we have avoided publishing them as we do not want to publish inaccurate information.
However, as the old saying goes, “where there’s smoke, there’s fire,” so there is probably at least a few grains of truth to those rumors.
WHAT ABOUT ANTI-VAXXERS?
It’s pretty common for hospitals to have various personnel policies that encourage their employees to get the flu vaccine. However, they do not absolutely require hospital employees to get the vaccine – but those provisions do require anti-vaxxer employees to take other preventative steps (like wear a mask during flu season) to avoid spreading the flu.
So what happens if we get the long-awaited COVID-19 vaccine or a similar treatment and an applicant refuses to get it?
I would submit that unless the employee can provide strong evidence of a life-or-death reason to not get the vaccine, that failure to get the vaccine should be a disqualification of workers’ compensation benefits.
The various legislative committees need to consider this when amending these presumptions, because there are anti-vaxxers in our health care system and work as first responders. They should not be allowed to take advantage of these presumptions if they are unwilling to get the medical care needed to avoid COVID-19.
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 Tarzana location, where he heads the firm’s Sports Law Division and watches 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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