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Prop 23 Advisors
790 East Colorado Blvd. 9th Floor
Pasadena CA 91101
In this edition of Insights:
Workers Compensation Insights
Commentary from Mark Webb:
Workers' Compensation Insights is the publication of Prop 23 Advisors. Subscribers will receive in depth analyses of pending California legislation and regulations, review of important WCAB and appellate court decisions, and commentary on trends within the system both nationally and in California. Insights is published bi-monthly subject to the timing of significant legislative activity in Sacramento.
SB 1159 Awaits Governor's Action. Senate Bill 1159 (Hill and Daly) represents the Legislature’s effort to establish a rebuttable presumption of compensability for workers contracting COVID-19. This follows on the heels of Governor Newsom’s Executive Order N-62-20 (WCEO), which created a rebuttable presumption for workers not subject to the Governor’s stay-home Order, N-33-20. The WCEO lasted from March 19, the date of the stay-home Order, until July 5.
SB 1159 establishes three new presumptions. The first, Labor Code § 3212.86, covers the period of time during which the WCEO was in place. It is not simply a codification of the WCEO. The second, Labor Code § 3212.87, applies to various health care and public safety/rescue personnel. The presumption in this section applies to cases on and after July 6, 2020. That is the day after the WCEO expired. The third presumption is for all other classifications of employment not enumerated in Labor Code § 3212.87 and who have five or more employees (Labor Code § 3212.88). Cases of COVID-19 by workers in these areas of employment are limited to specific places of employment where there is an “outbreak” during a 14-day period. This, too, applies to cases on and after July 6, 2020.
The provisions of SB 1159 are repealed as of January 1, 2023 unless the Legislature takes further action before that time. There has been considerable rhetoric expended towards the conclusion that COVID-19 presumption bills present an existential threat to the “grand bargain” of workers’ compensation. This is not unique to California. To date, in each case where legislatures have taken action, presumptions have been limited and rebuttable. The California system apparently was not cataclysmically affected by the WCEO which, notwithstanding SB 1159’s quirks, remains the basic template for addressing occupational COVID-19.
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