Work Comp Presumption Compromise?
On top of everything else, it looks like some California employers will get stuck footing the bill for COVID-19 related claims under a workers’ compensation presumption bill working its way to the Governor in the final few days of the legislative session. SB 1159 was just amended with language dubbed a “compromise” between sets of draft amendments presented to the Governor’s office recently by organized labor groups and a coalition of employers, insurers, self-insurers, and public entity groups.
As amended, Section 1 of the bill directs the Commission on Health, Safety and Workers’ Compensation to conduct a study relative to the impact on the WC system of COVID-19 claims.
Section 2 of the bill merely codifies the Governor’s Executive Order implementing the rebuttable presumption for CORVID claims from March 19 through July 6th. This section is being put in statute to prevent anyone from challenging the EO in the future.
Section 3 of the bill continues the rebuttable presumption for all first responders, frontline medical personal and home health care individuals. The statute contains language that allows the employer to rebut the presumption based on compliance with state recommended safety protocols or actions of the employee that have exposed him or her to COVID outside the workplace. The bill goes on to indicate that the ability of the employer to rebut COVID claims is not limited to compliance with safety protocols and out employee behavior.
Section 4 of the bill applies the rebuttable presumption to all employers that experience a cluster or outbreak of COVID claims within any given 14-day period.
- For employers with less than 100 employees, the definition of an outbreak is 5 or more employers reporting positive COVID tests within a 14-day period.
- For employers with over 100 employees the definition of an outbreak is 5% of their workforce experiencing COVID claims in a 14-day period.
The “outbreak” must be at a specific location or work site to account for employers with different job site, work shifts and/or multiple locations.
Also, SB 1159 bill does not apply to employers who have 5 or fewer employees.
The amendments include the same language as in Section 3 of the bill regarding rebutting claims. These provisions apply to claims made between July 5 and December 31, 2022 when the bill would sunset by its own terms.
There are various other provisions contained in the bill, including provisions that would require the employee to exhaust their paid sick leave benefits and meet certain certification requirement before becoming eligible for temporary disability benefit under workers’ compensation. But some employers will get hit with a triple whammy:
- paying for the cost of healthcare for their employees
- covering the cost of altering their business operations to respond to the pandemic
- suffering increased costs of WC to cover what is otherwise a public health risk
Resources to Help Protect Your Business
California has implemented additional worker safeguards to ensure safety. The enhanced safeguards focus on preventative measures and employer education, which are covered in the 33-page, newly released “COVID-19 Employer Playbook for a Safe Reopening.”
The playbook specifies that all employers must implement (and update as necessary) a plan that:
- Is specific to your workplace
- Identifies all areas and job tasks with potential exposures to COVID-19
- Includes control measures to eliminate or reduce such exposures
- Maintains healthy business operations
- Maintains a healthy work environment
- Provides effective training for workers
- Encourages workers to give input into an effective workplace plan
Providing Effective Training for Workers
If you are looking for training that you can provide to workers to help protect your business, here is a short course that each employee can watch online. After viewing, they will receive a certificate of completion to prove that they received training.