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AB-415 Employment: workers’ compensation.(2021-2022)

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Date Published: 02/12/2021 09:00 PM
AB415:v98#DOCUMENT

Amended  IN  Assembly  February 12, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 415


Introduced by Assembly Member Robert Rivas

February 03, 2021


An act to amend Section 245.5 of add Section 3212.18 to the Labor Code, relating to employment. workers’ compensation.


LEGISLATIVE COUNSEL'S DIGEST


AB 415, as amended, Robert Rivas. Paid sick days: family member: child. Employment: workers’ compensation.
Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee for injuries sustained in the course of the employee’s employment. Existing law provides that in the case of active firefighting members of certain fire departments and in the case of certain peace officers, a compensable injury includes cancer that develops or manifests itself during the period when the firefighter or peace officer demonstrates that they were exposed to a known carcinogen, as defined, while in the service of the public agency. Existing law establishes a presumption that the cancer in these cases arose out of, and in the course of, employment, unless the presumption is controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the member has demonstrated exposure is not reasonably linked to the disabling cancer.
This bill would define “injury,” for certain employees of a city, county, city and county, district, or other municipal corporation or political subdivision regularly exposed to active fires or health hazards directly resulting from firefighting operations, to include cancer that develops or manifests during a period in which the individual demonstrates that they were exposed to a known carcinogen while in the employment of the city, county, city and county, district, or other municipal corporation or political subdivision. The bill would establish a presumption that the cancer in those cases arose out of, and in the course of, employment, unless the presumption is controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the person has demonstrated exposure is not reasonably linked to the disabling cancer.

Existing law, the Healthy Workplaces, Healthy Families Act of 2014, generally entitles an employee who works in California for the same employer for 30 or more days within a year to paid sick days, as specified. The act requires an employer, upon request of an employee, to provide paid sick days for reasons that include the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. The act defines terms for its purposes. The definition of the term “family member” includes, among other persons, a child, which for purposes of the act means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. Existing law applies the definition of a child regardless of age or dependency status.

This bill would also apply the definition of a child regardless of immigration status.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YESNO   Local Program: NO  

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


SECTION 1.

 Section 3212.18 is added to the Labor Code, to read:

3212.18.
 (a) The term “injury,” as used in this division, includes cancer, including leukemia, that develops or manifests during a period in which an individual described in subdivision (d) demonstrates that they were exposed, while in the employment of the city, county, city and county, district, or other municipal corporation or political subdivision as specified in subdivision (d), to a known carcinogen as defined by the International Agency for Research on Cancer, or as defined by the director.
(b) The compensation that is awarded for an injury due to cancer shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
(c) Cancer that develops or manifests as described in subdivision (a) is presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by evidence that the primary site of the cancer has been established and that the carcinogen to which the person has demonstrated exposure is not reasonably linked to the disabling cancer. Unless so controverted, the appeals board is bound to find in accordance with the presumption. This presumption shall be applied to an individual following termination of employment for a period of three calendar months for each full year of the requisite employment, but not to exceed 120 months in any circumstance, commencing with the last date actually worked in the specified capacity.
(d) This section applies to employees of a city, county, city and county, district, or other municipal corporation or political subdivision, other than the persons to whom Section 3212.1 applies, whose job duties cause the employees to be regularly exposed to active fires or health hazards directly resulting from firefighting operations, such as exposure to toxic chemicals deposited on firefighting equipment.

SECTION 1.Section 245.5 of the Labor Code is amended to read:
245.5.

As used in this article:

(a)“Employee” does not include the following:

(1)An employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for paid sick days or a paid leave or paid time off policy that permits the use of sick days for those employees, final and binding arbitration of disputes concerning the application of its paid sick days provisions, premium wage rates for all overtime hours worked, and regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.

(2)An employee in the construction industry covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and regular hourly pay of not less than 30 percent more than the state minimum wage rate, and the agreement either (A) was entered into before January 1, 2015, or (B) expressly waives the requirements of this article in clear and unambiguous terms. For purposes of this subparagraph, “employee in the construction industry” means an employee performing work associated with construction, including work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, repair work, and any other work as described by Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, and other similar or related occupations or trades.

(3)An individual employed by an air carrier as a flight deck or cabin crew member that is subject to Title II of the federal Railway Labor Act (45 U.S.C. Sec. 151 et seq.), provided that the individual is provided with compensated time off equal to or exceeding the amount established in paragraph (1) of subdivision (b) of Section 246.

(4)An employee of the state, city, county, city and county, district, or any other public entity who is a recipient of a retirement allowance and employed without reinstatement into the employee’s respective retirement system pursuant to either Article 8 (commencing with Section 21220) of Chapter 12 of Part 3 of Division 5 of Title 2 of the Government Code, or Article 8 (commencing with Section 31670) of Chapter 3 of Part 3 of Division 4 of Title 3 of the Government Code.

(b)“Employer” means any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and municipalities.

(c)“Family member” means any of the following:

(1)A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age, dependency, or immigration status.

(2)A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.

(3)A spouse.

(4)A registered domestic partner.

(5)A grandparent.

(6)A grandchild.

(7)A sibling.

(d)“Health care provider” has the same meaning as defined in Section 12945.2 of the Government Code.

(e)“Paid sick days” means time that is compensated at the same wage as the employee normally earns during regular work hours and is provided by an employer to an employee for the purposes described in Section 246.5.