Keenan Blog

Amendments to COVID-19 Workers’ Compensation Presumption Bills

August 31, 2020

August 25, 2020 was the last day to amend bills on the floor in the California legislature, and all three COVID-19 workers’ compensation presumption bills were substantively amended on that date. With the bill language now finalized, legislators have until August 31, 2020 to pass these bills and send them to Governor Newsom for signature or veto.Efforts to pass this legislation by the looming deadline will be complicated by the fact that the Senate was forced to cancel floor session on August 26, 2020 when one of its members was diagnosed with COVID-19.

AB 196 (Gonzalez)

Until recently, this bill was written to establish a “conclusive” presumption for COVID-19. As amended on August 25, 2020, AB 196 would establish a disputable presumption for all essential critical infrastructure workers exempt form statewide stay-at-home orders, except firefighters, peace officers, or health care employees providing direct patient care in an acute care hospital. The bill states that the presumption “shall be extended to the employee following termination of service for a period of 90 days, commencing with the last date actually worked.” Employers under this bill would have 30 days from the date the claim is filed to rebut the presumption. The presumption in this bill would apply to cases of COVID-19 occurring on and after March 1, 2020. This bill has no sunset date.

AB 664 (Cooper)

While this bill was originally written to apply to any communicable disease, it was amended on August 25, 2020 to apply only to COVID-19. It would be a rebuttable COVID-19 presumption for peace officers, health care workers providing direct patient care in an acute care hospital, firefighters and correctional officers. Like AB 196, this bill gives an employer 30 days to rebut the presumption. The bill also states an intent to implement two sets of policies and goals regarding peace officers, firefighters and health care employees directed to quarantine due to exposure to COVID-19: paid sick leave and provision of housing and living expenses related to an ordered quarantine. Prior versions of the legislation would have required quarantine expenses to be reimbursed through workers’ compensation. The presumption established by AB 664 would be effective from January 1, 2020 until July 1, 2024. Unlike the other two bills, AB 664 also has a provision requiring employers to provide personal protective equipment (PPE) to all employees. AB 664 is written as an urgency statute, to take effect as soon as it is signed. Because of the urgency language, AB 664 will require a 2/3 super-majority of votes in order to pass and go to the Governor.

SB 1159 (Hill)

As amended on August 25, 2020, SB 1159 would establish three categories of workers to whom the COVID-19 presumption would apply:

  • Those covered by the terms and conditions of Governor Newsom’s Executive Order N-62-20 for the dates on which it applied. That executive order expired on July 5, 2020.
  • Peace officers, firefighters, employees who provide direct patient care, custodial employees in contact with COVID-19 patients at health facilities, EMTs, home health workers, and other health workers diagnosed with COVID-19 from July 6, 2020 through December 31, 2022. Employers would have 30 days to rebut the presumption for these workers. With regard to workers at health facilities that did not provide direct patient care or were not a custodial employee in contact with COVID-19 patients, the presumption will be rebutted with evidence that the employee did not have contact with a health facility patient within the last 14 days who tested positive for COVID-19.
  • Workers who contract COVID-19 from any employer that experiences an “outbreak” at a particular work location. “Outbreak” is defined as at least 5 employees (for employers with 5-100 employees) or 5% of employees (for employers with more than 100) who contract COVID-19 within any 14-day period from July 6, 2020 through December 31, 2022. An employer would have 45 days to rebut the presumption for a worker with this type of claim. The bill states that “evidence relevant to controverting the presumption may include, but is 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.”

 

About Amy Donovan
Amy is Keenan's Vice President of Legislative and Regulatory Affairs, authoring the firm's Briefings and position papers on legislation, regulation and litigation that have an impact on the firm and its clients.