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Young: It's Done: [2020-09-09]
The 2020 California legislative session is done. What is notable from a workers’ comp standpoint?
While the number of bills passed was small, some important ones await Governor Newsom’s signature as this post is done. In future posts I’ll analyze some of these in more depth, but let’s take a snapshot look now:
More professions gained exemptions from the AB5 “ABC” employment test:
Ever since the 2019 passage of AB5, which enshrines the “ABC test” employed by the California Supreme Court in the Dynamex case, various professions have sought exemptions.
Scores of bills were proposed in 2020 to provide relief for professions and groups of workers concerned that they would now be classified as employees under the “ABC test”. Dynamex was a wage and hour case and did not apply the ABC test to workers’ comp, but AB5 contained no such limitation.
Not all of the groups seeking relief got it, but many did.
AB 2257 (Gonzalez) contains language that will help exempt many groups who hare hired under specified circumstances, including graphic designers, web designers, various freelancers, journalists, photojournalists, still photographers, editors, wedding and event planners, translators, interpreters, real estate appraisers, home inspectors, certain event judges, artists and performance artists, tutors, youth sports coaches, certain music industry personnel, etc. etc. Governor Newsom signed this bill on Sept. 4.
AB 323 (Rubio) provides an exemption for news carriers through Jan. 1, 2022.
Gig worker platforms such as Uber, Lyft, DoorDash, PostMates, Instacart and the like received no relief. Those companies have unleashed a tsunami of advertising in support of Prop 22, attacking the application of AB5 to their platforms.
Here is a link to the text of AB 2257 and the Aug. 31 Assembly Floor Analysis: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB2257
The legislature passed a COVID-19 rebuttable presumption bill:
As noted in my recent blog post “Which Path?”, three presumption bills were under consideration in the final days of the session. But it was SB 1159 (Hill) which secured passage.
SB 1159 provides several groups a presumption that a COVID diagnosis is work related.
One group is peace officers, firefighters, healthcare workers who provide direct patient care or custodial services who are in direct contact with COVID patients, RNs, EMTs, certain other healthcare employees, and certain homecare and IHSS providers.
Another group who get the presumption are workers who have been employed at a specific place of employment during an “outbreak”. The bill adopts a “4 or 4% formula”. If there are under 100 employees at a specific place of employment, 4 employees who contract COVID constitute an outbreak. If there are more than 100 employees, 4% must contract it to qualify.
Exactly how difficult this will be to administer is not clear. This sort of formula was in an earlier version of the bill, but then taken out, but then added back in.
Workers who do not qualify for the presumption can still file and pursue claims, but are not aided by a presumption as they try to prove their cases.
A link to the text of SB 1159 and the Aug. 31 Senate Floor Analysis can be found here: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB1159
A supplemental paid sick leave program is mandated for some workers who contract COVID
AB 1867 provides that supplemental paid sick leave be paid to certain classes of workers. Those eligible under the bill are firefighters, specified healthcare workers, and food sector workers who are employed by employers with 500 or more workers. This sunsets on Dec. 31.
Here is the link to the text and the Aug. 31 Senate Floor analysis: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1867
CFRA, the California Rights Act, is expanded to cover care for additional categories of family members
SB 1383 expands the CFRA by allowing unpaid job-protected leave to be taken for an expanded list of family members. Now included is leave taken to care for domestic partners, grandchildren, siblings and parents-in-law, all of whom must have a serious health condition. This bill was opposed by the CalChamber, which deemed it a job-killer and an overly burdensome mandate for business.
SB 1383 is likely to come in handy for many injured worker families. For example, the injured worker may not need or want a non-family member coming into the home, but the work-related health condition may be serious enough that the worker needs extra attention. This will allow family members to help out the injured worker without losing their own jobs.
Stay tuned. After the Governor acts on these bills, I’ll be providing more coverage.
Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog,