On Thursday, two California workers’ compensation bills survived the August legislative suspense file graveyard.

Julius Young

Senate Bill 1299 and SB 1205 cleared the California Assembly Appropriations Committee.

SB 1299 creates a disputable heat illness presumption applicable to the agricultural industry.

The Legislative Counsel’s Digest summarizes the bill as follows:

This bill would create a disputable presumption that a heat-related injury that develops within a specified time frame after working outdoors for an employer in the agriculture industry that fails to comply with heat illness prevention standards, as defined, arose out of and came in the course of employment. The bill would require the [Workers' Compensation Appeals Board] to find in favor of the employee if the employer fails to rebut the presumption. The bill would specify that compensation awarded for heat-related injury to farmworkers is to include, among other things, medical treatment and disability. The bill would establish the Farmworker Climate Change Heat Injury and Death Fund that would consist of a one-time transfer of $5,000,000 derived from nongeneral funds of the Workers’ Compensation Administration Revolving Fund for the purpose of administrative costs associated with this presumption.

The bill is sponsored by the United Farmworkers Union and opposed by various employer groups. Additional legislative analysis of this bill by various committees can be found here.

SB 1205 would add the following section to the California Labor Code:

(2) (A) When possible, an employee shall make a reasonable effort to schedule treatment outside of regular work hours. A reasonable effort shall not require a worker to consequentially delay treatment.
(B) If the treatment occurs during working hours and if the timing of the treatment is foreseeable, the employee shall provide reasonable, advance notification to the employer. If the timing of the treatment is unforeseeable, the employee shall provide notice of the treatment as soon as practicable.
(C) Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the federal Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.), if the employee would have been eligible for that leave at the time leave was taken, and the Moore-Brown-Roberti Family Rights Act, commonly referred to as the California Family Rights Act (Sections 12945.2 and 19702.3 of the Government Code), if the employee would have been eligible for that leave at the time leave was taken.
(D) If an employer denies an employee’s request to attend scheduled treatment during regular work hours, the employer’s conduct constitutes a violation under the provisions of Section 132a.

SB 1205 is sponsored by the California Federation of Teachers and other labor groups and is opposed by various employer groups.
 
The Assembly Appropriations Committee analysis noted that:

The workers’ compensation system is based on a compromise that allows an employee injured at work to receive employer-funded medical care, temporary disability (TD) to replace lost wages, and permanent disability to provide compensation for lasting impairment. In exchange, the injured worker cannot sue their employer for their injury. Prior to amendments adopted by the Assembly Insurance Committee upon passage of this bill, this bill provided that an injured employee, who is still able to work, is entitled to receive TD to supplement wages lost as a result of seeking prescribed treatment. However, courts have repeatedly held that an employee is not entitled to TD to attend medical appointments. Thus, the Assembly Insurance Committee amended this bill to instead provide that an employer’s denial of an employee’s request to receive treatment during work hours constitutes discrimination against the employee. However, an employee must make a reasonable effort to schedule treatment outside of regular work hours and provide advance notice to the employer if treatment occurs during work hours. As noted in the Assembly Insurance Committee’s analysis of this bill, “[T]he committee recommends that the author consider adding additional language to provide employers some ability, in limited circumstances, to reject an employee’s leave request.” Additionally, this bill requires an employee covered by FMLA or CFRA to take treatment-related leave concurrently with leave under those programs. However, this requirement may inadvertently require a covered employee to expend more benefits to take treatment-related leave than another employee who is not covered by FMLA or CFRA but still entitled to the same level of workers’ compensation protections.

Both of these bills are likely headed to the governor’s desk but will likely undergo further amendments before getting there.

Julius Young is an applicants' attorney and a partner for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers Comp Zone blog on the firm's website.