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SB-1159 Workers’ compensation: COVID-19: critical workers.(2019-2020)

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Date Published: 08/03/2020 02:00 PM
SB1159:v95#DOCUMENT

Amended  IN  Assembly  August 03, 2020
Amended  IN  Senate  June 18, 2020
Amended  IN  Senate  April 22, 2020
Amended  IN  Senate  April 01, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 1159


Introduced by Senator Hill
(Principal coauthor: Assembly Member Daly)

February 20, 2020


An act to add and repeal Section 3212.86 Sections 3212.86, 3212.87, and 3212.88 of the Labor Code, relating to workers’ compensation.


LEGISLATIVE COUNSEL'S DIGEST


SB 1159, as amended, Hill. Workers’ compensation: COVID-19: critical workers.
Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee employee, as defined, for injuries sustained in the course of employment. Existing law creates a disputable presumption that specified injuries sustained in the course of employment of a specified member of law enforcement or a specified first responder arose out of and in the course of the employment. Existing law governs the procedures for filing a claim for workers’ compensation, including filing a claim form, and provides that an injury is presumed compensable if liability is not rejected within 90 days after the claim form is filed, as specified.
This bill would, until an unspecified date, would define “injury” for an employee to include illness or death resulting from the 2019 novel coronavirus disease 2019 (COVID-19) under specified circumstances. circumstances, until January 1, 2024, and July 1, 2024, for employees generally, and until July 1, 2024, for certain peace officers, firefighters, and health care workers, among others. The bill would create a disputable presumption, as specified, that an injury that develops or manifests itself while an employee is employed the injury arose out of and in the course of the employment. employment and is compensable. The bill would limit the applicability of the presumption under certain circumstances. The bill would require an employee to exhaust their paid sick leave benefits and meet specified certification requirements before receiving any temporary disability benefits or, for police officers, firefighters, and other specified government employees, a leave of absence. The bill would also make a claim relating to a COVID-19 illness presumptively compensable, as described above, after 30 days rather than 90 days. Until July 1, 2024, the bill would allow for a presumption of injury for all employees whose fellow employees at their place of employment experience specified levels of positive testing, and whose employer has 5 or more employees.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 3212.86 is added to the Labor Code, immediately following Section 3212.85, to read:

3212.86.
 (a) This section applies to any employee with a COVID-19-related illness.
(b) The term “injury,” as used in this division, includes illness or death resulting from COVID-19 if all of the following circumstances apply:
(1) The employee has tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction. For the purpose of this subdivision, an “employee’s place of employment” does not include an employee’s home or residence.
(2) The day referenced in paragraph (1) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after March 19, 2020, and on or before July 5, 2020. The date of injury shall be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction.
(3) If subdivision (a) paragraph (1) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician and surgeon physician’s and surgeon’s license issued by the California Medical Board and that diagnosis is confirmed by further testing within 30 days of the date of the diagnosis.
(c) (1) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(2) An accepted claim for a COVID-19-related illness shall be subject to the workers’ compensation laws of this state, including Sections 4663 and 4664, except as otherwise provided in this section.
(d) (1) If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits or benefits under Section 4800, 4800.5, or 4850 are due and payable. If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4800, 4800.5, or 4850 benefits, if applicable, from the date of injury. There shall not be a waiting period for temporary disability benefits.
(2) To qualify for temporary disability or Section 4800, 4800.5, or 4850 benefits under this section, an employee shall satisfy either of the following:
(A) If the employee tests has tested positive or is diagnosed with COVID-19 on or after May 6, 2020, the employee shall be certified for temporary disability within the first 15 days after the initial diagnosis, and shall be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
(B) If the employee has tested positive or was diagnosed with COVID-19 before May 6, 2020, the employee shall have obtained a certification, no later than May 21, 2020, documenting the period for which the employee was temporarily disabled and unable to work, and shall be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
(3) An employee shall be certified for temporary disability by a physician holding a physician and surgeon physician’s and surgeon’s license issued pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code. The certifying physician may be a designated workers’ compensation physician in an applicable Medical Provider Network or Health Care Organization, a predesignated workers’ compensation physician, or a physician in the employee’s group health plan. If the employee does not have a designated workers’ compensation physician or group health plan, the employee shall be certified by a physician of the employee’s choosing who holds a physician and surgeon license. If the employee has a predesignated physician pursuant to subdivision (d) of Section 4600, is covered by a medical provider network pursuant to Article 2.3 (commencing with Section 4616) of Chapter 2 of Part 2, is covered by a workers’ compensation health care organization pursuant to Article 2 (commencing with Section 4600) of Chapter 2 of Part 2, or is covered by a group health plan, the certifying physician shall be a physician and surgeon in that network, organization, or plan. Otherwise, the certifying physician may be a physician and surgeon of the employee’s choosing.
(e) An injury that develops or manifests itself while an employee is employed described in subdivision (b) is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.
(f) Notwithstanding Section 5402, if liability for a claim of a COVID-19-related illness is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable, unless rebutted by evidence only discovered after the 30-day period. compensable. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 30-day period.
(g) The Department of Industrial Relations shall waive collection on the right to collect any death benefit payment due pursuant to Section 4706.5 arising out of claims covered by this section.
(h) This section applies to all pending matters, unless otherwise specified in this section, but shall not be a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
(i) For purposes of this section, “COVID-19” means the 2019 novel coronavirus disease 2019. disease.
(j) This section shall remain in effect only until January 1, ____, 2024, and as of that date is repealed.

SEC. 2.

 Section 3212.87 is added to the Labor Code, to read:

3212.87.
 (a) This section applies to the following employees:
(1) Active firefighting members, whether volunteers, partly paid, or fully paid, of all of the following fire departments:
(A) A fire department of a city, county, city and county, district, or other public or municipal corporation or political subdivision.
(B) A fire department of the University of California and the California State University.
(C) The Department of Forestry and Fire Protection.
(D) A county forestry or firefighting department or unit.
(2) Active firefighting members of a fire department that serves a United States Department of Defense installation and who are certified by the United States Department of Defense as meeting its standards for firefighters.
(3) Active firefighting members of a fire department that serves a National Aeronautics and Space Administration installation and who adhere to training standards established in accordance with Article 4 (commencing with Section 13155) of Chapter 1 of Part 2 of Division 12 of the Health and Safety Code.
(4) Active firefighting members of a fire department that provides fire protection to a commercial airport regulated by the Federal Aviation Administration (FAA) under Part 139 (commencing with Section 139.5) of Subchapter G of Chapter 1 of Title 14 of the Federal Code of Regulations and are trained and certified by the State Fire Marshal as meeting the standards of Fire Control 5 and Section 139.319 of Title 14 of the Federal Code of Regulations
(5) Peace officers, as defined in Section 830.1, subdivision (a) of Section 830.2, and subdivisions (a) and (b) of Section 830.37, of the Penal Code, who are primarily engaged in active law enforcement activities.
(6) (A) Fire and rescue services coordinators who work for the Office of Emergency Services.
(B) For purposes of this paragraph, “fire and rescue services coordinators” means coordinators with any of the following job classifications: coordinator, senior coordinator, or chief coordinator.
(7) A nurse or physician who provides direct patient care, or a custodial employee in contact with COVID-19 patients, who works at a health facility. For the purposes of this subdivision, “health facility” means a health facility as defined in subdivisions (a), (b), (c), (m), and (n) of Section 1250 of the Health and Safety Code.
(8) An authorized registered nurse, emergency medical technician-I, emergency medical technician-II, emergency medical technician-paramedic, as described in Chapter 2 (commencing with Section 1797.50) of Division 2.5 of the Health and Safety Code.
(b) The term “injury,” as used in this division, includes illness or death resulting from COVID-19 if all of the following circumstances apply:
(1) The employee has tested positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction. For purpose of this subdivision, an “employee’s place of employment” does not include an employee’s home or residence.
(2) The day referenced in paragraph (1), on which the employee performed labor or services at the employee’s place of employment at the employer’s direction, was on or after July 6, 2020. The date of injury shall be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction.
(3) If paragraph (1) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician’s and surgeon’s license issued by the Medical Board of California and that diagnosis is confirmed by testing within 30 days of the date of the diagnosis.
(c) (1) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(2) An accepted claim for a COVID-19-related illness shall be subject to the workers’ compensation laws of this state, including Sections 4663 and 4664, except as otherwise provided in this section.
(d) (1) If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits or benefits under Section 4800, 4800.5, or 4850 are due and payable. If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4850 benefits, if applicable, from the date of injury. There shall not be a waiting period for temporary disability benefits.
(2) To qualify for temporary disability benefits or benefits described in Section 4800, 4800.5, or 4850 pursuant to this section, an employee shall have tested positive or be diagnosed with COVID-19 on or after July 6, 2020. The employee shall be certified for temporary disability within the first 15 days after the initial diagnosis, and shall be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
(3) An employee shall be certified for temporary disability by a physician holding a physician’s and surgeon’s license issued pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code. If the employee has a predesignated physician pursuant to subdivision (d) of Section 4600, or is covered by a medical provider network pursuant to Article 2.3 (commencing with Section 4616) of Chapter 2 of Part 2, or is covered by a workers’ compensation health care organization pursuant to Article 2 (commencing with Section 4600) of Chapter 2 of Part 2, the certifying physician shall be that predesignated physician or a physician and surgeon in that network or organization.
(e) An injury described in subdivision (b) is presumed to arise out of and in the course of the employment, except as provided in this subdivision. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.
(f) Notwithstanding Section 5402, if liability for a claim of a COVID-19-related illness is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 30-day period.
(g) The Department of Industrial Relations shall waive the right to collect any death benefit payment due pursuant to Section 4706.5 arising out of claims covered by this section.
(h) This section applies to all pending matters, unless otherwise specified in this section, but shall not be a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
(i) For purposes of this section:
(1) “COVID-19” means the 2019 novel coronavirus disease.
(2) “Test” or “testing” means a PCR (Polymerase Chain Reaction) test approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA. “Test” or “testing” does not include serologic testing, also known as antibody testing.
(j) This section shall remain in effect only until July 1, 2024, and as of that date is repealed.

SEC. 3.

 Section 3212.88 is added to the Labor Code, to read:

3212.88.
 (a) This section applies to the following employees who are not covered by Sections 3212.86 and 3212.87 and whose employer has five or more employees.
(b) The term “injury,” as used in this division, includes illness or death resulting from COVID-19 if all of the following circumstances apply:
(1) The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction. For the purpose of this subdivision, an “employee’s place of employment” does not include an employee’s home or residence.
(2) The day referenced in paragraph (1) on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. The date of injury shall be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction.
(3) If paragraph (1) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a physician who holds a physician’s and surgeon’s license issued by the Medical Board of California and that diagnosis is confirmed by testing within 30 days of the date of the diagnosis.
(4) The employee initially tests positive within a period of 14 days when, at the employee’s specific place of employment, the number of employees who initially test positive is either:
(A) Five percent of the employees at places of employment with 100 or more employees, or
(B) Five employees at places of employment with fewer than 100 employees.
(C) For the purpose of this paragraph.
(i) The date the specimen was collected shall be the date of an employee’s test.
(ii) Only the initial positive test of any employee shall be considered, regardless of any subsequent test performed within 30 days of that employee’s first positive test.
(iii) A specific place of employment can refer to either a single location or a group of contiguous locations. For employees with no fixed specific place of employment, the specific place of employment is the location to which they are primarily assigned, from which their work is assigned, or to which they report.
(c) (1) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(2) An accepted claim for a COVID-19-related illness shall be subject to the workers’ compensation laws of this state, including Sections 4663 and 4664, except as otherwise provided in this section.
(d) (1) If an employee has paid sick leave benefits specifically available in response to COVID-19, those benefits shall be used and exhausted before any temporary disability benefits, benefits under Section 4800, 4800.5, or 4850, or Section 44977, 44984, 45192, 45196, 87780, 87787, 88192, or 88196 of the Education Code are due and payable. If an employee does not have those sick leave benefits, the employee shall be provided temporary disability benefits or Section 4850 benefits, if applicable, from the date of injury. There shall not be a waiting period for temporary disability benefits.
(2) To qualify for temporary disability benefits or benefits described in Section 4800, 4800.5, or 4850, or Section 44977, 44984, 45192, 45196, 87780, 87787, 88192, or 88196 of the Education Code pursuant to this section, an employee shall have tested positive or be diagnosed with COVID-19 on or after July 6, 2020. The employee shall be certified for temporary disability within the first 15 days after the initial diagnosis, and shall be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.
(3) An employee shall be certified for temporary disability by a physician holding a physician’s and surgeon’s license issued pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code. If the employee has a predesignated physician pursuant to subdivision (d) of Section 4600, or is covered by a medical provider network pursuant to Article 2.3 (commencing with Section 4616) of Chapter 2 of Part 2, or is covered by a workers’ compensation health care organization pursuant to Article 2 (commencing with Section 4600) of Chapter 2 of Part 2, the certifying physician shall be that predesignated physician or a physician and surgeon in that network or organization.
(e) An injury described in subdivision (b) is presumed to arise out of and in the course of the employment, except as provided in this subdivision. This presumption is disputable and may be controverted by other evidence. Unless controverted, the appeals board is bound to find in accordance with the presumption.
(f) Notwithstanding Section 5402, if liability for a claim of a COVID-19-related illness is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 30-day period.
(g) The Department of Industrial Relations shall waive the right to collect any death benefit payment due pursuant to Section 4706.5 arising out of claims covered by this section.
(h) This section applies to all pending matters, unless otherwise specified in this section, but shall not be a basis to rescind, alter, amend, or reopen any final award of workers’ compensation benefits.
(i) For purposes of this section:
(1) “COVID-19” means the 2019 novel coronavirus disease.
(2) “Test” or “testing” means a PCR (Polymerase Chain Reaction) test approved for use or approved for emergency use by the United States Food and Drug Administration to detect the presence of viral RNA. “Test” or “testing” does not include serologic testing, also known as antibody testing.
(j) This section shall remain in effect only until July 1, 2024, and as of that date is repealed.