In March of this year, California Governor Gavin Newsom issued an Executive Order (EO) instituting a rebuttable presumption that any worker, not working at home at the direction of their employer, who contracted COVID-19, was presumed for purposes of workers’ compensation to have contracted the virus at work. By its own terms, the Executive Order is in effect from March 19 through July 5. As such, without an extension of the Executive Order by the Governor, or the Legislature enacting an urgency or budget bill extending the presumption, the presumption will soon expire. If the COVID-19 presumption does expire, the burden of proof to show the worker contracted the virus within the course and scope of employment returns to the injured worker. The effect of the presumption is the employer must demonstrate through a negative test or otherwise, the worker did not contract the coronavirus during the performance of their work duties.
Discussions with the Governor’s senior staff over the last couple weeks have provided some hope the Governor will not extend his Executive Order. The staff has indicated the Governor has no plans to extend the EO and feels, with California reopening, the conditions that necessitated the presumption are no longer in effect. Unfortunately, with the recent spikes in COVID-19 cases being experienced by approximately 19 counties representing nearly 75% of California’s population, there are facts to which the Governor could cite to extend the presumption if the situation worsens.
Of course, the California Legislature is weighing in on the matter as well. Organized labor wants a permanent irrebuttable presumption applied to all essential workers, in which such language is contained in AB 196 (Gonzalez). Another bill backed by police and fire unions and the nurses association would also extend a permanent irrebuttable presumption to first responders, EMTs, frontline medical personnel, and grocery workers. The bill would also extend workers’ compensation benefits to include temporary housing and personal protection equipment.
The leading bill on the topic currently is SB 1159 (Hill). Authored by the Chair of the Senate Labor Committee and co-authored by the Chair of the Assembly Insurance Committee, the bill has already passed a policy and finance hearing in the Senate and, just recently, passed a vote of the full Senate. The next stop for this bill will be in the Assembly Insurance Committee. The other two bills, AB 196 and SB 664, have also passed their first house but in another form completely. They were gutted and amended to be workers’ compensation bills in the second house. Both bills are scheduled to be heard in the Senate Labor Committee on July 19.
SB 1159 (Hill) is a two-part bill. The first part of the bill enshrines the Governor’s Executive Order so it cannot be legally challenged at a later date. The second part of the bill is intended to extend the rebuttable presumption, but to narrow both who it applies to and the circumstances. Discussions currently indicate the presumption would apply to first responders, frontline medical personnel, and grocery and warehouse workers. The bill would also require positive test results and include a sunset clause to expire at a certain time.
It does not appear any of these three bills on the topic will be enacted before the July 5 expiration of the Governor’s Executive Order; however, this does not mean a bill enacted by the time the Legislature adjourns for the year on August 30 could not be backdated to July 6. It is expected a bill on this topic would garner a two-thirds vote of both houses of the Legislature and thereby be effective upon the signature of the Governor. More to come later…