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I may no longer know precisely what month it is as we stretch into the fifth month of the shelter-in-place orders, but judging by the clear blue skies and the heat, we’re well into what would have been a lovely summer of concerts, festivals, and other large gatherings. While many summer plans like that romantic getaway to Bora Bora or the family vacation to Walley World have been put on hold or scaled down, we hope you and yours get a chance to enjoy some of the sunshine. So if you can at all, take a few days and (safely) get out of your home or office, especially important if your home is now indistinguishable from the office.
COVID PRESUMPTION BILLS PASS COMMITTEES – ONE STEP CLOSER TO LAW
On 8/12/2020 the California Senate Labor, Public Employment, and Retirement Committee voted to pass Assembly Bill (AB) 196 and AB 664. On the same day, the Assembly Insurance Committee voted to pass Senate Bill (SB) 1159.
If passed, AB 196 would create a conclusive presumption for certain employees employed in an occupation or industry deemed essential in the Governor’s Executive Order of 3/19/2020 (Executive Order N-33-20) or later deemed essential, that any COVID-19 that develops or manifests itself during their period of employment is arising out of and in the course of employment. The bill would create a conclusive presumption not subject to rebuttal and the presumption would extend for 90 days after termination of employment. The bill specifically excludes firefighters, peace officers, and health care workers.
AB 664 would create a rebuttable presumption that COVID-19 contracted by firefighters, peace officers, and health care workers and other first responders is arising out of and in the course of employment. The presumption would extent for 30 days after termination of employment. The bill would also create a presumption of compensability for any claims not denied within 30 days after the filing of a claim form pursuant to Labor Code 5401. That presumption would only be rebuttable by evidence only discovered after the 30 day period. The bill also provides for the provision of or reimbursement of housing and living expenses where a quarantine is ordered or where it is directed by a licensed health care professional, a public health officer or agency, or the employer due to exposure to COVID-19, even without a diagnosis. In such cases, the employee will be entitled to paid leave and not required to use any accrued personal, sick, vacation, or compensatory leave. Apportionment under Labor Code 4663 would not apply to these cases as it does not to various other diseases and injuries for these favored professions. Finally, the bill amends Labor Code 6403 to require an employer to either provide or reimburse an employee for emergency equipment or personal protective equipment (PPE) that provides protection to an employee.
Finally SB 1159 would essentially codify the executive order previously signed by Governor Newsom. The bill would extend that presumption to 2024 for certain employees, including peace officers, firefighters, and health care workers. The bill creates a rebuttable presumption that an employee who has tested positive for or been diagnosed with COVID-19 within 14 days of working for an employer outside the home during the period between 3/19/2020 and 7/5/2020 suffered an industrial injury. If one is diagnosed without a test, for the presumption to remain in place, the diagnosis must be confirmed by a test within 30 days of diagnosis by a licensed physician. The bill contains the same provisions as to liability for temporary total disability as the executive order as well, indicating that employees who test positive on or after 5/6/2020 shall be certified for temporary disability within the first 15 days after the initial diagnosis and recertified every 15 days thereafter. The bill also requires a claim to be denied within 30 days or presumed compensable, rebuttable thereafter only by evidence discovered after the 30-day period. The bill is to automatically sunset on 1/1/2024 as to standard employees.
SB 1159, however, also contains language applicable specifically to police, firefighters, and healthcare workers. For those workers, the terms of the executive order apply to all dates after 7/6/2020 as opposed to during the period of 3/19/2020 to 7/5/2020. The presumption also sunsets on 1/1/2024 as to these favored employees, but extends the presumption for the period of 7/6/2020-1/1/2024. SB 1159, if it passes, will deflate some of the due process arguments against the executive order by codifying its terms. As the terms are the same as the executive order previously passed, the flowchart Mullen & Filippi has prepared for handling the executive order will also be useful if SB 1159 becomes law.
MISCELLANEOUS COVID UPDATES
The WCIRB authorized submission of a 1/1/2021 advisory pure premium rate filing to the California Insurance Commissioner that would see average advisory pure premium rates around 2.6% above the average approved on 1/1/2020. Chief Actuary and WCIRB Executive Vice President Dave Bellusci noted that absent the estimated impact of COVID-19 claims in 2021, the WCIRB would have likely recommended a small decrease of 1.3% in advisory pure premium rates. The WCIRB had earlier indicated that COVID-19 could cost the workers’ compensation system in California around $2.17 billion through 2022 depending on whether the above-mentioned presumption bills are signed into law. The filing should be submitted during the week of 8/24/2020. The full article is available here: https://www.wcirb.com/news/governing-committee-authorizes-january-1-2021-pure-premium-rate-filing
The California Workers’ Compensation Institute has released a visually compelling interactive application allowing you to sort current COVID data by industry, by insurance type, and with respect to particular periods. The interactive application provides an interesting overview into what we know so far about COVID claims. Through 7/6/2020 there were 14,487 claims reported, and 66 deaths reported. The link can be found here: https://www.cwci.org/CV19claims.html
The DWC and the WCAB have adopted updated procedures effective 8/17/2020. All Mandatory Settlement Conferences, Priority Conferences, Status Conferences, Case-in-Chief Trials, Lien Conferences, and Expedited Hearings will continue to be held telephonically via dedicated conference lines. However, beginning 8/17/2020, the DWC will also have a video option available for Trials and Expedited Hearings only using a video platform called LifeSize. The platform does have several system requirements parties will need to ensure are met but use of the platform will be free of cost. All parties are instructed to first call into the telephone conference line, at which point, the judge has the option to provide the link to parties interested in proceeding via video trial. The details and a link to the system requirements for LifeSize are available here: https://www.dir.ca.gov/DIRNews/2020/2020-69.html
NEW CASE BRIEFS AVAILABLE!
This month our entire Orange office got into the action. Managing Associate Partner Karly Tambara, Associate Partner Linda Bryan, and Associate Attorneys Marjan Hemmati and Elliott Castaneda collaborated to discuss what constitutes a “bona fide” offer in determining whether a Supplemental Job Displacement Benefit Voucher is owing. Specifically, they discuss the recent Workers’ Compensation Appeals Board En Banc decision in Dennis v. State of California – Department of Corrections and Rehab Inmate Claims. The article first notes that Administrative Director Rule 10133.54 was found invalid because it limited the WCAB’s exclusive jurisdiction to adjudicate compensation claims, including disputes over the voucher, and then goes on to discuss the facts of a very interesting case that provides guidance to employers and carriers as to what will constitute a bona fide return to work offer sufficient to excuse voucher liability. The article is worth the read, as there are many situations where an employer cannot make a genuine job offer such as the bankruptcy of a company that could potentially be analogized to the facts in the Dennis claim.
This Bulletin was written by Jim Cotter, Associate Partner in our Walnut Creek office.