Haight Brown & Bonesteel LLP continues to monitor legislative changes made to or considered for the California workers’ compensation system due to the COVID-19 pandemic. On March 13, President Trump announced a national emergency in response to the coronavirus outbreak. Since then, Governors and legislatures across the country have proposed or implemented changes to their states’ workers’ compensation systems. Recently two bills have been introduced in the California State Legislature proposing to create a presumption of compensability for COVID-19 illness. Governor Newsom is also said to be considering an executive order creating a conclusive presumption of a compensable industrial injury for all essential workers who contract COVID-19. Below is a summary of the proposed legislative, insurance and executive action.
Senate Bill 1159: “This bill would, until an unspecified date, define ‘injury’ for a critical worker to include illness or death that results from exposure to coronavirus disease 2019 (COVID-19) under specified circumstances. The bill would create a rebuttable presumption that illness with COVID-19 that develops or manifests itself while a critical worker is employed, arose out of and in the course of the employment.” Lawmakers are considering including within the definition of “critical worker” those employees in the public sector and private sector who are “employed to combat the spread of COVID-19.”
Assembly Bill 664: According to the legislative analyst, “[t]his bill would define ‘injury,’ for certain state and local firefighting personnel, peace officers, certain hospital employees, and certain fire and rescue services coordinators who work for the Office of Emergency Services to include being exposed to or contracting, on or after January 1, 2020, a communicable disease, including coronavirus disease 2019 (COVID-19), that is the subject of a state or local declaration of a state of emergency that is issued on or after January 1, 2020. The bill would create a conclusive presumption, as specified, that the injury arose out of and in the course of the employment. The bill would apply to injuries that occurred prior to the declaration of the state of emergency. The bill would also exempt these provisions from the apportionment requirements. This bill would declare that it is to take effect immediately as an urgency statute.”
In the proposed AB 664 language, health care employees are those that provide direct patient care in an acute care hospital. The proposed statute provides for reimbursement of personal protective equipment, reasonable living expenses, temporary housing costs, medical treatment, death benefits and disability indemnity.
The State Compensation Insurance Fund, California’s largest insurer, recently announced it would lift a requirement for the receipt of workers’ compensation benefits that essential workers afflicted by COVID-19 prove they contracted the virus on the job. In other words, the State Compensation Insurance Fund will accept any claim by an essential worker for COVID-19 if they are able to prove they tested positive for the disease.
In the interim, existing case law in California already may support a finding of industrial causation from exposure to COVID-19 in the work place. The common cold, flu or a virus are not typically compensable unless the allegedly injured worker establishes that he or she suffered a Special Exposure. This Special Exposure exception to the non-compensability of airborne illnesses arises when it is proved that the employment causes an increased risk, a materially greater risk or a higher probability, of contracting the disease than the general public. See Bethlehem Steel Company v. IAC (1943). An in-depth analysis of the Special Exposure exception is available in Workers’ Compensation Quarterly, “AB 203: How Global Climate Change and Valley Fever Impact Workers’ Compensation,” February 2020.
We will continue to closely monitor any developments in California legislation or actions taken by Governor Newsom to establish a COVID-19 presumption. We recommend that until there is legislation that addresses the issue, each case should be evaluated under the standards for the Special Exposure Exception.
This document is intended to provide you with information about workers’ compensation law related developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors. This communication may be considered advertising in some jurisdictions.