Tuesday, November 29, 2022

Workers’ Comp Job Killer Proposal Fails to Move

Legislation expanding the presumption that certain diseases and injuries are caused by the workplace failed in an Assembly policy committee this week for lack of a motion.

SB 213 (Cortese; D-San Jose) was opposed as a job killer by the California Chamber of Commerce and a coalition including numerous local chambers of commerce.

It would have significantly increased workers’ compensation costs for public and private hospitals by presuming certain diseases and injuries are caused by the workplace and established an extremely concerning precedent for expanding presumptions into the private sector.

In a letter sent last week to the Assembly Insurance Committee, the CalChamber-led coalition pointed out that SB 213 would have imposed an astronomical financial burden on employers in the health care industry by creating a permanent legal presumption that the following are presumptively workplace injuries for all hospital employees that provide direct care: bloodborne infectious disease, tuberculosis, meningitis, methicillin-resistant Staphylococcus aureus (MRSA), cancer, musculoskeletal injury, post-traumatic stress disorder, or respiratory disease, including COVID-19, and asthma.

The Legislature has consistently rejected this bill in all its forms, the coalition stated.

Undermines System

Workers’ compensation insurance automatically covers injuries occurring within the course and scope of employment, regardless of fault.

SB 213 sought to require that hospital employees do not need to demonstrate work causation for specified injuries or illnesses in any circumstance. Instead, these injuries and illnesses would have been presumed under the law to be work related.

Presumptions of industrial causation for specific employees and injury types are simply not needed and create a tiered system of benefits that treats employees differently based on occupation and undermines the credibility and consistency of the workers’ compensation system.

Presumption Extension

The bill’s special standard for accepting claims would have applied to hospital workers not only while employed, but also would have continued for up to 3, 5 or 10 years (depending on the injury) after the worker left employment.

Generally, there is a one-year statute of limitations for workers’ compensation claims. By requiring claims to be filed within one year from the date of injury, existing law ensures claims will be resolved while evidence and witnesses are still available. Stale claims, faded memories, and unavailable witnesses not only impede an employer’s ability to defend against a claim, but also impede the ability of the workers’ compensation system to evaluate a claim properly.

By permitting a former employee to come back and file a claim for up to 10 years after employment had ended, SB 213 would have rendered the employer virtually powerless to question the compensability of the claim.

Troubling Precedent

Although there is a long history of legal presumptions being applied to public safety employees in the workers ‘compensation system, there has never been a presumption applied to private sector employees outside of the COVID-19 pandemic.

Legislation passed in 2020 (SB 1159; Hill; D-San Mateo) established a rebuttable presumption that certain employees who contracted COVID-19 were covered under workers’ compensation. Even in this exceptional circumstance, SB 1159 was limited in both time and scope. The bill has a sunset date of January 1, 2023, and most employees outside of a few industries can fall under the presumption only if four or four percent of other workers at the worksite also contracted COVID-19 within a short time frame.

SB 213 reached far beyond SB 1159 without justification by making a permanent presumption that can apply up to 10 years after an employee has stopped working.

Workers’ compensation is designed to apply a consistent, objective set of rules to determine eligibility, medical needs and disability payments for all injured workers in California. The Legislature should not take on the role of trying to identify likely injuries for every occupation in the state with the goal of creating special rules for those employees. This is an unrealistic expectation in an insurance system that covers thousands of types of employees and employers.

No Evidence

Supporters of SB 213 have argued that health care workers are more likely to contract the diseases listed in the bill. But analyses of prior versions of the bill by a Senate committee found no evidence to support that argument.

Moreover, no statistical evidence has been presented to indicate that workers’ compensation claims by hospital employees for exposure to the diseases listed in SB 213 are being inappropriately delayed or denied by employers or insurers. In addition, there has been no demonstration that hospital employees are uniquely affected in a negative way by the current legal standard for determining compensability of industrial injuries.

Staff Contact: Ashley Hoffman

Ashley Hoffman
Ashley Hoffman
Ashley Hoffman joined the CalChamber in August 2020 as a policy advocate specializing in labor and employment and workers’ compensation issues. Before joining the CalChamber, she was an associate attorney in the Sacramento office of Jackson Lewis P.C., representing employers in civil litigation and administrative matters, as well as advising employers on best practices, including compliance with labor laws. She previously worked as a litigation associate and a summer associate at Gibson, Dunn & Crutcher, LLP, Los Angeles. She also was a law clerk at the U.S. District Court for the Western District of Tennessee in Memphis and a judicial extern for the Ninth Circuit U.S. Court of Appeals in Pasadena. Hoffman holds a B.A. with high honors in political science from the University of California, Santa Barbara, and earned her J.D. from the UCLA School of Law, where she was a Michael T. Masin scholar, an editor at the UCLA Law Review, and staff member for the Women’s Law Journal.

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