COVID-19 PRESUMPTIONS REPEALED: WHAT YOU NEED TO KNOW
GMK ALERT – Today’s News You Can Use
ISSUE DATE: Thursday, January 4, 2024
IN THIS ALERT: COVID-19 PRESUMPTIONS REPEALED: WHAT YOU NEED TO KNOW
SB 1159 was enacted on September 17, 2020, and established two rebuttable presumptions for employees contracting COVID-19: (1) for frontline workers, including peace officers, firefighters, healthcare providers, homecare workers, and IHSS workers, and (2) for employees who contracted COVID-19 in the midst of a workplace outbreak. The legislation shortened the investigation period and imposed reporting requirements on employers for the purposes of the outbreak presumption.
SB1159 was set to expire on January 1, 2023, but was later extended through December 31, 2023, by AB 1751.
There is no additional legislation to further extend the COVID-19 presumptions. The presumption statutes (Labor Code §§3212.86, 3212.87, and 3212.88) have been repealed effective January 1, 2024.
Do COVID-19 Claims With Dates of Injury Prior to January 1, 2024 Still Benefit From the Presumption?
In short, no.
Where a statute has been repealed without a saving clause, all pending actions stop where the repeal finds them. If final relief has not been granted before the repeal goes into effect, the reviewing court must determine the case under the law in effect on the date of decision. Any case that has not yet been tried, or is pending appeal, would be governed by current law and would not be governed by the repealed statute.
Certain legislation will contain a saving clause, which is sometimes referred to as “grandfathering.” A saving clause preserves the right or authority despite an amendment or repeal of the former law.
As of January 1, 2024, the WCAB will not be able to rely on the COVID-19 presumptions to support a compensability finding regardless of the date of injury. The burden of proof has shifted back to the employee.
Should All COVID-19 Claims Be Denied in the Absence of the Presumptions?
No. The repeal of COVID-19 presumptions does not allow employers to deny all COVID-19 claims that were previously accepted as Labor Code §5402 is still applicable. Any COVID-19 claim not rejected within 90 days after the date of the filing of a claim form is presumed compensable but remains rebuttable by evidence discovered after the 90 day period.
In addition, an employee may still establish the compensability of COVID-19 claims under the standard rules for compensability for nonoccupational diseases. There are numerous cases holding that nonoccupational disease claims regarding common colds, the flu, and similar viral diseases are compensable only if the employee has established there was a special exposure to the particular disease or disease causing agents, creating an “increased risk” that is materially greater than what the general public experiences.
To maintain a good faith denial, it is still important to conduct a thorough investigation and to contemplate increased risks of a particular profession. There may be circumstances where, even in the absence of the presumption, it is still reasonable to accept a claim.
What this means for you?
The COVID-19 presumptions no longer exist, and the burden of proof has shifted back to the employee.
Compensability of COVID-19 claims will be assessed under the standard for nonoccupational diseases, and an employee must establish that either: (1) the employment subjected them to an increased risk compared with that of the general public or (2) the immediate cause of the injury is an intervening human agency or instrumentality of the employment.
Time frames to address compensability have reverted back to the standard 90-day timeframe.
Questions? Please contact GMK with any further questions and obtain further information.
Jessica Tyndall, Esq.
Goldman, Magdalin & Krikes, LLP
735 Tank Farm Road, Suite 200, San Luis Obispo, CA 93401
(805) 548-8727 Main || (805) 548-8728 Fax
Goldman, Magdalin & Krikes, LLP