COVID-19 Presumption Bills Pending at the Legislature
- July 29th, 2020
- Tom Richard
- No comments
As of August 11, 2020, the California Legislature is considering four COVID-19 presumption bills. Each is summarized below.
SB 1159: The bill was last amended in Assembly on August 3, 2020. It is currently pending in State Assembly Insurance Committee.
SB 1159, would add three sections to the Labor Code: 3212.86, 3212.87, and 3212.88. Each would enact a separate presumption law, applying to different classes of employees.
Notwithstanding the usual 90-day time frame allowed to investigate a workers’ comp claim, SB 1159 requires that COVID-19 claims be denied within 30 days. Otherwise, they are presumed compensable and rebuttable only by evidence reasonably discoverable subsequent to the 30-day period.
Sec. 3212.86 applies to all California employees who meet certain criteria. It seems to codify Executive Order N-62-20 by confirming the rebuttable presumption that an illness or death resulting from COVID-19 on or after March 19, 2020, and on or before July 5, 2020, arose out of and in the course of employment. Sec. 3212.86 expires on January 1, 2024.
Similar to the Executive Order, the Bill includes such criteria as: (1) work-time proximity, (2) a positive test or diagnosis, (3) test/diagnosis time proximity and (4) work-place proximity. (For an analysis of Executive Order N-62-20, visit our Presumption Page.)
As with the Executive Order, this Bill would require an employee to exhaust their paid sick leave benefits and meet specified certification requirements before receiving any temporary disability benefits or other leave of absence benefits (e.g., Section 4850 pay). To qualify for temporary disability, Section 4850 pay, or similar benefits, an employee is required to satisfy either of the following:
• If the employee tested positive on or after May 6, 2020, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis. In addition, the employee must be re-certified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
• If the employee tested positive before May 6, 2020, the employee must have obtained a certification no later than May 21, 2020, documenting the period for which the employee was temporarily disabled and unable to work. Further, the employee must be re-certified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
Sec. 3212.87 applies to injuries on or after July 6, 2020 and expires on July 1, 2024. The presumption would apply to peace officers, firefighters and certain health care workers, and is largely the same presumption requiring the same criteria as Sec. 3212.86.
Interestingly, the Bill provides that a “test” or “testing” means a PCR (Polymerase Chain Reaction) test approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA. “Test” or “testing” does not include serologic testing, also known as antibody testing.
Sec. 3212.88 applies to all employees not covered by Sec. 3212.87, but only if their employer has five or more employees. It also covers injuries on or after July 6, 2020 and expires on July 1, 2024.
However, this section only applies when certain numbers of other employees at the employee’s specific place of employment also “initially tests positive” within a 14 day period of the employee’s positive test. This part of the Bill limits all triggering “testing” of the claimant and the other employees to the PCR test, excluding antibody tests.
The number of employees who also test positive must be either:
AB 664: The bill was last amended in Assembly on August 3, 2020. It is currently pending in State Assembly Insurance Committee.
AB 664 applies to peace officers, fire fighters, and health care employees providing direct patient care in an acute care hospital. The Bill triggers a conclusive presumption that exposure or contraction of communicable diseases, including COVID-19, occurring on or after January 1, 2020, arose out of employment. The Bill extends the presumption to an eligible employee following termination of service for a period of 90 days, commencing with the last date actually worked in the specified capacity.
AB 664 prohibits any requirement for an employee to exhaust accrued vacation, sick leave, or other compensatory leave, as a prerequisite to reimbursement. Under the Bill, an eligible employee would be entitled to all normal compensation benefits as well as reimbursement for personal protective equipment that provides protection for the employee and others, temporary housing costs if the employee is required to quarantine, and temporary housing costs as necessary to protect others from being exposed to or contracting COVID-19.
AB 196: The Bill was last amended in Senate on May 5, 2020. It is currently pending in State Senate Labor, Public Employment and Retirement Committee.
AB 196 applies to employees in occupations and industries that are deemed essential under the stay at home orders issued by Governor Gavin Newsom. The Bill introduces a conclusive presumption that the developed or manifesting COVID-19 disease occurring on or after March 1, 2020, arose out of and in the course of employment. If enacted, the Bill would allow post-termination filings for up to 90 days after the last day worked.
SB 893: The Bill was last amended in Senate on April 29, 2020. It failed passage in State Senate Labor, Public Employment and Retirement Committee on May 14, 2020. It is currently pending reconsideration in the Committee.
SB 893 creates rebuttable presumptions that infectious diseases, musculoskeletal injuries, and respiratory diseases that developed or manifested in a hospital employee arose out of and in the course of employment. The Bill would allow filings up to 60 months following termination from employment for infectious diseases and musculoskeletal injuries, and up to 120 months for respiratory diseases.
Question? Need Help?
To help folks understand the effect of the Order creating the COVID-19 WC presumption of injury, RTGR Law has recorded a 1 hour On-Demand Webinar available on YouTube, summarizing the Order. The program is available 24/7 and is eligible for 1 hour of claims adjuster CE credit. You can find the PDF of the Webinar here: COVID-19 WC Presumption Webinar PDF
RTGR Law tackles the most challenging claims and controversies on behalf of California public agencies and employers. That’s what sets us apart. Our COVID-19 team is ready to help right now with legal strategies. If you have questions about the presumption or would like strategic help on any complex case, send an e-mail to your closest RTGR Law office:
Los Angeles email@example.com
San Jose firstname.lastname@example.org
Orange County email@example.com
Van Nuys firstname.lastname@example.org
San Diego email@example.com