California Senate Should Once Again Reject Creating a New, Unwarranted Workers’ Compensation Presumption
The Senate will soon be asked to vote on SB 213 (Cortese), a CalChamber Job Killer, which would set a dangerous precedent in the workers’ compensation system. The bill would create a legal presumption that blood-borne infectious disease, tuberculosis, meningitis, methicillin-resistant Staphylococcus aureus (MRSA), cancer, musculoskeletal injury, post-traumatic stress disorder, or respiratory disease (including COVID-19) are presumptively workplace injuries for all hospital employees that provide direct care. The presumptions for some of these conditions, such as cancer or respiratory disease like COVID-19, would exist for up to 10 years after the employee stops working. The proponents have put forward no data demonstrating the need for this presumption.
Injuries occurring within the course and scope of employment are automatically covered by the workers’ compensation system, regardless of fault. The law requires that the no-fault system be liberally construed to favor the worker. The vast majority of workers’ compensation claims are accepted, usually around 90% of claims.
In rare instances, the Legislature has introduced presumptions into the system. This means that the injury is presumed covered unless the employer can prove otherwise, essentially requiring the employer to prove a negative. Presumptions are rare. They have historically only been used for certain public employees, predominantly law enforcement and firefighters. COVID-19 is the one rare instance in which a presumption has ever been extended into the private sector. Even then, the presumption was limited in time and scope.
This bill has been tried time and again in the Legislature and has failed every time. The past two similar bills did not make it out of committee, receiving 0 and 1 Aye votes, respectively. The one similar bill that did make it out of the Legislature in 2014 was vetoed by Governor Brown. Nothing has materially changed since those prior bills and there is still no data demonstrating a need for this bill.
Senators should think critically about what imposing an unwarranted presumption on the private sector would do to the workers’ compensation system. As noted in a prior committee analysis that still rings true today, “the creation of presumptive injuries is an exceptional deviation that uncomfortably exists within the space of the normal operation of the California workers’ compensation system,” and to not limit them “would essentially consume and undermine the entire system”.
Ashley Hoffman, Policy Advocate