Workers Comp Zone

THE COVID PRESUMPTION BILL

SB 1159 will be the legislative vehicle to address a compensability presumption for workers who contract COVID after the July 2020 expiration of Governor Newsom’s executive order.

The bill had been set for hearing. That was postponed and the bill amended. It’s now set for hearing in the Assembly Insurance Committee on August 11.

As the pandemic progressed, workers’ comp stakeholder groups have been meeting for months to craft a bill. The latest print version of SB 1159 can be found here:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB1159

In the August 3 version of the bill, peace officers, firefighters and healthcare workers would be eligible for a presumption that would run til July 1, 2024. Those healthcare workers would include not only nurses and physicians involved in direct patient care, but also EMTs and custodial employees in contact with COVID patients.

The presumption would be rebuttable. Advocates of a conclusive presumption have not gotten political traction.

What about other workers who could be argued to be essential such as grocery workers, highway maintenance workers, warehouse workers, transport workers and so many other workers whose jobs have remained as usual during the pandemic? Many of those workers perform public contact jobs.

SB 1159 would not grant them a COVID presumption based on their job title or the nature of their work.

Instead, SB 1159 would set up a system basing qualification for the presumption on the number of workplace cases.

For larger employers, those with 100 employees or more, 5% or more of the employees would need to test positive. For smaller employers, those with less than 100 employees, 5 employees would need to test positive.

While I understand the difficulty of crafting a bill dealing with such a broad and critical problem, administering this bill may prove difficult. 

Workers and their attorneys who would need to access data about COVID test results of co-workers will have substantial discovery and privacy hurdles. While this may not be a problem in cases where there have been huge outbreaks such as we have seen at some meatpacking plants, or at others where COVID caused temporary facility closures, those may be the exceptions.

The bill does not appear to require employers to provide workers with the tally of numbers of positive co-worker tests. Would we see depositions of plant managers and supervisors? Depos of county health officials?

Exactly how this bill would operate in the real world is not totally apparent. That’s not to say that it is not aiming at setting up a valid criteria for a COVID presumption.

If this is the best that can be negotiated, so be it. But sorting this out will be tricky.

Stay tuned as we see how this bill progresses.

Julius Young

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