New Laws Designed to Protect Workers During the Pandemic
Last week, California Governor Gavin Newsom signed new laws that will make Workers' Compensation benefits more easily accessible for workers exposed to COVID-19 in the workplace and assist in ensuring a safe employment environment for workers.
Presumption of Injury Law
Senate Bill (SB) 1159 was signed into law, establishing a presumption of Workers' Compensation liability for COVID-19 cases.
As outlined in SB 1159, the law creates a rebuttable presumption (an assumption made by a court that is taken to be true unless proven otherwise) that exists for specified workers who become ill or die as a result of COVID-19 if certain elements are met. The purpose behind the law is to make it easier and faster to get a valid COVID-19 claim accepted and Workers' Compensation benefits provided.
With the signing of SB 1159 into law, there are three ways by which COVID-19 could be presumed to be caused by work on or after July 6, 2020 and before January 1, 2023.
First, this new law mostly codifies the presumption Governor Newsom created through Executive Order that applied to workers who tested positive for COVID-19 within 14 days of going to work between March 19, 2020 and July 5, 2020. Secondly, it creates a rebuttable presumption for a COVID-19 exposure injury that occurs on or after July 6, 2020 thorough January 1, 2023. This presumption law expires and will no longer apply after the January 1, 2023 date. There are two separate sections that define the law for this latter period and they will be detailed below.
Third, injured workers are still able to assert injury arising out of and in the course of employment related to COVID-19 exposure without asserting the presumption and such will be treated as a "regular" Workers' Compensation case. This means you may still be able to pursue a Workers' Compensation case for work-related COVID-19 exposure if there is evidence that you were exposed on the job, even if the presumption law does not apply.
- If "frontline" workers—peace officers, firefighters, emergency medical technicians, nurses, home healthcare workers and in-home supportive services workers—test positive within 14 days of being on the job, the disease is presumed to be caused by the job.
- For "frontline" workers, any COVID claim that is filed and not rejected within 30 days is determined to be work related unless there is evidence to rebut it that could only be discovered after the 30-day window. This is different from California's long-standing 90-day delay period for an employer to determine if an injury is work related.
- All other employees (non-frontline employees) will be presumed to have contracted COVID-19 at work if there was an outbreak at the place of employment. An outbreak is defined by law in one of three ways:
- If four or more workers contract the virus within a 14-day period at a workplace with five to 100 employees.
- Four percent of employees contract the virus in a 14-day period at a workplace with more than 100 employees.
- The specific place of employment is closed by the government based on an outbreak.
These claims are determined to be work related if not rejected within 45 days unless there is evidence to rebut it that could only be discovered after the 30-day window. This is different from California's long-standing 90-day delay period for an employer to determine if an injury is work related.
"It is vital for workers not to get discouraged if their COVID-19 case doesn't fall squarely into the presumptive categories," says Steve Scardino, a partner in the law firm of Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP (GEK). "The conditions for proof have been very narrowly defined, but if you contract COVID-19, you have a right to prove your condition was industrially related. Contact a Workers' Compensation attorney to help fight for the rights and benefits to which you are entitled."
Worker Protections in the Midst of a Pandemic
Assembly Bill (AB) 685, introduced by Assembly member Eloise Gómez Reyes (D-San Bernardino), was also signed into law by the governor, and will go a long way toward making the workplace safer in the age of COVID-19.
AB 685 ensures timely notification to employees and local and state public health officials of COVID-19 cases at workplaces, helping workers take necessary precautions, such as being tested, getting medical assistance or complying with quarantine directives.
"When it comes to AB 685, reporting is key in order for the system to work," says Erika Vargas, a Senior Attorney at GEK. "It's all about the numbers."
"Protecting workers is critical to slowing the spread of this virus," said Newsom. "These two laws will help California workers stay safe at work and get the support they need if they are exposed to COVID-19."
Statistics paint the dramatic story. The number of Workers' Compensation claims for COVID-19 have jumped from 4,790 in May to 11,271 in June and to 12,889 in July, according to the Department of Industrial Relations.
"It is our hope that with the passage of these two new laws, we can curb the spread of COVID-19 and better protect workers until a viable vaccine is produced," says Scardino. "The discussion about prioritizing our workforce finally has some traction, and at an absolute minimum, has raised awareness in the legal and medical communities that COVID-19 can be a work-related illness whether it fits neatly into the presumption or not."