Compromise Struck on Workers’ Comp Presumption Bill

SACRAMENTO, CA, Aug. 25, 2020 - The California Assembly today amended SB 1159 with language dubbed a “compromise” between sets of draft amendments presented to the Governor’s office recently by organized labor groups and a coalition of employers, insurers, self-insurers and public entity groups.

As amended, Section 1 of the bill directs the Commission on Health, Safety and Workers’ Compensation to conduct a study relative to the impact on the WC system of COVID-19 claims.  Section 2 of the bill merely codifies the Governor’s Executive Order implementing the rebuttable presumption for CORVID claims from March 19 through July 6th. This section is being put in statute to prevent anyone from challenging the EO in the future.

Section 3 of the bill continues the rebuttable presumption for all first responders, frontline medical personal and home health care individuals.  The statute contains language that allows the employer to rebut the presumption based on compliance with state recommended safety protocols or actions of the employee that have exposed him or her to COVID outside the workplace. The bill goes on to indicate that the ability of the employer to rebut COVID claims is not limited to compliance with safety protocols and out employee behavior. 

Section 4 of the bill applies the rebuttable presumption to all employers that experience a cluster or outbreak of COVID claims within any given 14-day period. For employers with less than 100 employees, the definition of an outbreak is 5 or more employers reporting positive COVID tests within a 14-day period.  For employers with over 100 employees the definition of an outbreak is 5% of their workforce experiencing COVID claims in a 14-day period. The “outbreak” must be at a specific location or work site to account for employers with different job site, work shifts and/or multiple locations. Also, AB 1159 bill does not apply to employers who have 5 or fewer employees.  The amendments include the same language as in Section 3 of the bill with regard to rebutting claims.  These provisions apply to claims made between July 5 and December 31, 2022 when the bill would sunset by its own terms.

“There are various other provisions contained in the bill, including provisions that would require the employee to exhaust their paid sick leave benefits and meet certain certification requirement before becoming eligible for temporary disability benefit under workers’ compensation,”  IIABCal Lobbyist John Norwood said.  “But surmise to say, some unlucky employers will get hit with a triple whammy - paying for the cost of healthcare for their employees, covering the cost of altering their business operations to respond to the pandemic, and suffering increased costs of WC to cover what is otherwise a public health risk.”