On May 7, 2020, we shared about Governor Gavin Newsom’s executive order creating a rebuttable presumption that a California employee who contracts COVID-19 contracted it in the course of their employment.
The presumption applied to employees working from March 19 through July 5, 2020. Since then 3 different bills addressing COVID-19 presumptions are now winding their way through the Legislature.
SB 1159 would create a formal Labor Code section that essentially repeats the Governor’s executive order. It also includes a section identifying the Legislature’s intent to develop policies and procedures to create a rebuttable presumption for employees who are diagnosed with COVID-19 as a part of an outbreak at a specific place of employment. Many carriers and TPA’s are developing and looking for existing Work Comp defense attorneys to have set formulas for defending and rebutting these presumptions.
AB 664 covers first responders. It would add COVID-19 to a list of other communicable diseases where there is a rebuttable presumption that the disease arose out of employment. For the most part, this is not an unreasonable bill.
AB 196 would create a “conclusive” presumption that any employee who contracts COVID-19, and is working in an occupation or industry deemed essential, is conclusively presumed to have caught it through their employment. This could not be rebutted with evidence that the employee was infected with COVID-19 outside of their employment. The conclusive presumption would also be extended for a period of 90 days after the employee stopped working for the employer, and it would retroactively apply to COVID-19 infections occurring on or after March 1, 2020. In a normal workers’ compensation claim, the employee has the burden of establishing their injury arose in the course of their work. Over the years, the California Legislature has created rebuttable presumptions for certain injuries and infections for certain employees. In those situations, the injury or infection is presumed to have arisen in the course of the employee’s work, with the burden shifting to the employer to rebut this presumption. AB 196, however, goes further to create a conclusive presumption which could not be disputed. Fortunately and correctly, this bill is still being debated and the conclusive presumption language could be changed to a rebuttable presumption.
The obvious impact on premium from COVID-19 claims and potential claims is already being felt. The WCIRB’s governing committee recently approved a 2.6% increase in its advisory rates that carriers typically follow in determining their rates. The WCIRB of course attributed their recommended increase due to COVID-19 claims. Further, carriers may use the “potential” for such claims as a reason to increase premiums when an employer is up for renewal or looking for a new carrier. This can be anticipated whether or not the actual number and costs of those claims warrant an increase.
RPNA continues to monitor developments affecting workers’ compensation premium costs for employers who do business in California. We stand ready to assist our clients with questions and issues that you may have concerning the amount of workers’ compensation premium you are being charged. As always, contact us (or your broker) to discuss how we may be able to assist you.
Please contact Nicholas Roxborough at (818) 992-9999, ext. 222, or David Ginsburg, at ext. 228.
In the meantime, we hope you, your families and friends are healthy and staying safe.
