Lined Up in a Two-Back Set
Sep 9, 2020

LEAD STORY

Lawmakers in Sacramento passed a number measures in their final drive this week.  Included on the roster is SB 1159, a bill that sets the ground rules for workers’ compensation presumptions concerning employees who contract COVID-19 in the workplace.  The measure is under review by Governor Gavin Newsom (D-CA).  If signed, the legislation would take effect immediately and remain in effect until Jan. 1, 2023. We go inside the huddle for a closer look at the bill’s novel claims administration framework.

 

A TALE OF TWO HALVES

The bill establishes two timeframes for claims involving employees with COVID-19.  The first period falls within the state’s original Executive Order of March 19th through July 5th.  Most of the elements contained in Governor Newsom’s original order still apply. The second period applies to employees who are diagnosed with COVID-19 (or obtain a positive test) from July 6, 2020 onward.  In those cases, the bill states that, if an employer can establish that health workers, peace officers, firefighter, and other frontline workers did not have contact with a patient who tested positive for COVID-19 within 14 days of the diagnosis, then the workers’ compensation presumption no longer applies.

 

SECOND HALF ADJUSTMENTS

When it comes to determining compensability for work-related COVID-19 claims by all classes of employees, the second half of the bill sets out a playbook for employers with five or more employees. To allow for a proper compensability determination, the bill authorizes a 45-day investigative period.  The statute diagrams a specific claim handling schema and calls for an information hand-off between the employer and the claims administrator.

 

SEND IN THE PLAY

Specifically under SB 1159, once an employer knows (or reasonably should have known) that an employee tested positive for COVID-19, the employer must alert the claims administrator within three days. The employer may not provide identifying information about the employee unless that employee asserts the infection is work-related. The employer must then give the claims administrator the highest number of employees who reported to work during the 45 days before the last day the infected employee worked.  This is considered “outbreak” information under the statute.

 

READY. (OUT)BREAK.

The outbreak information puts the statute in motion.  The presumption only applies if the positive test occurred during an outbreak at the specific place of employment.  The “disputable presumption” applies only after an identified outbreak. In such circumstances, the employer may produce its evidence of preventative measures taken to reduce transmission in order to dispute the presumption.

 

PENALTY FLAGS

The bill lays out penalties for employers (or anyone acting on their behalf) who fail to comply with the information exchanges.  Employers who intentionally report false or misleading claims data will be subject to a civil penalty of up to ten thousand dollars to be assessed by the Labor Commissioner.

 

FRONT OFFICE NUMBERS

The California Department of Industrial Relations (DIR) reported that workers’ compensation claims for COVID-19 spiked dramatically in the past two months.  The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) now estimates that COVID-19 has driven more than $2 billion in costs for employers and their insurers even as some sectors of the state’s economy saw a downturn in claims.  To this end, SB 1159 calls upon the Commission on Health and Safety and Workers Compensation to conduct a study on the impact that COVID-19 has had on the California workers’ compensation system and deliver the final report to the governor by next April.  We’ll stay tuned to these developments.

 

Labor Day

PROTECTING WORKERS

Coinciding with Labor Day in the U.S. this week, the Kentucky House Democratic Caucus announced 15 bills to strengthen workforce protections and rights during the 2021 legislative session. The detailed list of measures included raising the minimum wage, repealing Kentucky’s right to work status, and prohibiting certain job screening questions like previous wage history. In Massachusetts, Attorney General Healy announced that her office assessed more than $12 million in restitution and penalties related to wage and hour charges across the Commonwealth.   And back in California, Cal/OSHA announced the results of more than 8,000 compliance assistance visits, and its engagement with more than 400,000 businesses. The state’s safety agency also announced its live and online training for employers in the agriculture, meatpacking, and food processing sectors and it created additional guidance for multi-lingual videos, daily checklists, and detailed guidelines on how to protect workers from COVID-19.

 

RECOGNIZING HARD WORK

Tomorrow afternoon the U.S. Department of Labor will conduct a Hall of Honor induction ceremony for the “Rosies.”  The DOL will recognize the between 5 and 7 million women who held war industry jobs during World War II, increasing the female work force to about 19 million. The Department of Labor’s Hall of Honor was established in 1988 to honor Americans whose distinctive contributions have elevated working conditions, wages, and overall quality of life for American families.  A well-earned recognition for those who know “We Can Do It!”

 

Making Our Way Around the Country

CALIFORNIA

 

Returning once again to California, Governor Newsom signed AB 2257 into law.  This measure will modify some of the current exceptions to AB 5, the state’s rules to distinguish independent contractors from employees. The new law allows more youth sports coaches, artists, interpreters, freelance writers, appraisers, insurance field representatives, and a range of people in the music industry to work as independent contractors. AB 2257 also memorializes the “Business-to-Business” exception and revises exemptions and criteria referral agencies.  The new law is effective immediately.  

 

CO-PILOTS

The Federal Motor Carrier Safety Administration announced a pilot program to allow Commercial Driver’s License holders, ages 18 – 20, to operate commercial vehicles in interstate commerce while taking part in a 120-hour probationary period and subsequent 280-hour apprenticeship period.  In a second move, the FMCSA announced a program to allow participating drivers to take one off-duty break of at least 30 minutes, but not more than three hours, that would pause a truck driver’s 14-hour driving window, if the driver takes 10 consecutive hours off-duty at the end of the work shift. The agency is accepting comments through November 2, 2020.

 

MARIJUANA

House Majority Leader Steny Hoyer (D-MD) announced that, for the first time, the United States House of Representatives will vote to legalize marijuana at the federal level.  The measure, known as the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, would remove marijuana from the federal list of controlled substances and expunge some marijuana-related criminal records and permit states to pass their own regulations on the sale of marijuana.  The vote is set for September 21, 2020. 

 

READY FOR SOME FOOTBALL

Back to our main story this week, the National Football League’s 2020 season quietly begins tomorrow.  To mimic the sound of the home crowd, the league will permit a loop of pre-recorded crowd noise specific to each team's stadium that must be played over the public address systems at 70 decibels starting at kickoff. Officials will monitor the audio throughout the game to make sure that the crowd noise does not go above or below required decibel levels.  We’ll take it.  Until next week, stay safe, stay well, and stay connected.

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