The California legislative session is slated to end tomorrow night. We are now at crunch time.
What maneuvering has been taking place behind the scenes over the weekend is not yet clear, but as of several days ago three workers’ comp COVID-19 presumption bills were still alive. One, SB 1159 was amended again over the weekend, which is a likely indicator that SB 1159 has focus and momentum.
These bills take different approaches, so it seems unlikely that all three will be passed and sent to the governor. Powerful labor, employer and public entity stakeholders, many of whom have been negotiating for months, are seemingly on a collision course with aspects of these bills.
As with so much that comes out of the California legislature, what transpires in the final analysis is often held close to the vest, under the radar of the meager press coverage of the Capitol dome.
If the governor’s office has favorite COVID presumption formulas, they certainly haven’t stepped in publicly.
Legislative analyses of these bills are included at the bottom of this post.
AB 196 (Gonzalez) no longer provides for a conclusive presumption. Instead, it would create a rebuttable presumption be applicable to essential workers. Those would be defined as critical infrastructure workers exempt from the requirements imposed by Governor Newsom’s Executive Order N-33-20 or other statewide stay at home orders.
AB 196 excludes a set of employees but they would get their presumption under a different bill AB 664 (Cooper). Thus, AB 196 excludes firefighters, peace officers and direct patient care hospital employees, etc. who instead come under AB 664.
SB 1159 (Hill) sets up a presumption for certain specified workers specified under its Section 3212.87(including those covered by AB 664 such as firefighters, peace officers, workers in direct patient care as well as certain health facility employees and in-home support services workers), but for employees not described in its Section 3212.87 “who test positive during an outbreak at the employee’s specific place of employment and whose employer has five or more employees”, there would be a 4 or 4% requirement to qualify for the presumption of industrial causation. For employers with 100 or less employees an outbreak would be defined as four employees testing positive for COVID. For employers with more than 100 employers, 4% would need to test positive. This sort of formula was proposed and then dropped but now added back into the bill.
Today the change in SB 1159 was made to 4 and 4 from 5 and 5, and language added in that “outbreak” would include if “a specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19.”
The link to information on the current text of SB 1159 is here:
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB1159
Here is a link to the text and legislative analysis of AB 196:
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB196
And here is a link to the text and analysis of AB 664.
http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201920200AB664
Stay tuned.
Julius Young
https://www.boxerlaw.com/attorney/julius-o-young/
510.835.8870