Zaglin: Increasing Presumptive Accidents for Well being Care Staff| Staff Compensation Information

By Aaron C. Zaglin

Tuesday, March 30, 2021 | 50 | 0 | min read

Senate Bill 213 is still working its way through California law and is not yet in effect as such. Because health care workers have significantly increased their exposure or vulnerability to certain work-related injuries or illnesses, Senate Bill 213 aims to protect them by providing easier access to workers’ compensation systems.

Aaron C. Zaglin

Comparison of SB 213 and SB 1159

Governor Gavin Newsom signed Senate Law 1159 as an emergency law on September 17, 2020 and it will remain in effect through January 1, 2023. At this point it will be canceled. Senate Bill 1159 created new Sections 3212.86, 3212.87, and 3212.88 of the Labor Code, which set specific guidelines for processing claims related to certain employees, including healthcare workers (Section 3212.87) who provide direct patient care, and in care facilities in healthcare facilities where this has already been the case in contact with COVID-19 patients due to their employment.

While we can all understand the reasons behind the guesswork for COVID-19 in relation to certain healthcare workers, Senate Bill 213 proposes seemingly perpetual guesses for several conditions that meet and exceed the guesses currently being given to public safety officers .

Senate Bill 213 would define “injury” for hospital workers who provide direct patient care in acute hospitals, including infectious diseases, cancer, musculoskeletal injuries, post-traumatic stress disorder, and respiratory diseases. It would make rebuttable presumptions that such violations arose out of and in the course of the employment relationship and extend those presumptions for certain periods after the employment relationship has ended.

Starting January 1, 2023, COVID-19 would be included in the definitions of infectious and respiratory diseases, effectively expanding the COVID-19 presumption for certain healthcare workers beyond the date when section 3212.87 was repealed.

Conditions foreseen for injuries falling under SB 213

Depending on the type of violation, there are several presumed conditions in Senate Act 213 and an extension of the presumptions for different periods after the termination of the employment relationship. Unless an infectious disease of hospital employees covered by the bill is attributed to a methicillin-resistant Staphylococcus aureus skin infection, the presumption that such an injury was caused by and in the course of employment would be extended by three months of employment, however no longer than 60 months. If the infectious disease is attributed to a methicillin-resistant Staphylococcus aureus skin infection, the guess would be extended by 90 days.

With regard to cancer that develops in hospital workers, the presumption that it arose from and during the course of employment would be extended by three months for each full year of employment, but not beyond 120 months. In the case of musculoskeletal injuries, the presumption would be extended by three months for each full year of employment, but not longer than 60 months.

Senate Bill 213 generally defines musculoskeletal injuries as injuries to muscles, tendons, ligaments, bursae, peripheral nerves, joints, bones, or blood vessels. This is a huge extension beyond the lower back presumption currently given to certain public safety officers. Presumably, the Senate draft would allow 213 hospital workers to file claims for something as small as a toe or a finger during the post-termination period.

For post-traumatic stress disorder claims, the presumption would be extended by three months for each year of employment, but not longer than 36 months. For respiratory diseases, including chronic obstructive pulmonary disease, asthma or COVID-19, the guess would be extended by three months for each year of work, but not longer than 120 months.

Similar to Section 3212.87 of the Labor Code, enacted as part of Senate Act 1159, Senate Act 213 would create a presumption of compensation for COVID-19 related illnesses and deaths suffered by certain post-employment healthcare workers. However, Senate Draft 213 would extend the period after termination during which a COVID-19-related illness or death is considered indemnifiable from the period of 14 days after termination in Section 3212.87 to up to 120 months after termination.

Senate Bill 213 also includes a larger scope of post-service injuries when compared to Section 3212.87. At the same time, Senate Bill 213 would limit the type of workers who are entitled to presumption after January 1, 2023 to only hospital employees who provide direct patient care in acute hospitals under subsection (a) or (b) of Section 1250 of the Health and Security Act.

While Section 3212.87 of the Labor Code also references Section 1250, it contains subsections (a), (b), (c), (m), or (n).

Conclusion

Senate Bill 213 would create the presumption of compensation for a wide range of injuries suffered by hospital workers who care for patients in acute hospitals directly. While the extent of the injuries and the post-employment period during which such injuries are deemed indemnifiable would be extended beyond January 1, 2023, the class of workers to whom these presumptions would apply would be more limited.

Given the burden on the employer under Senate Act 213 to rebut the presumption, it is imperative that stakeholders familiarize themselves with this bill to reduce the potential exposure. When these laws are passed and signed, we anticipate that this legislation will lead to an increase in entitlements in light of post-service renewals. We would also expect new laws aimed at expanding the types of alleged injuries for public safety officers to match those granted to hospital workers under Senate Act 213.

Aaron C. Zaglin is a lawyer with Laughlin, Falbo, Levy & Moresi LLP in San Francisco. This post was printed with permission from the company.