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Young: Prop. 22 and Workers' Comp

  • State: California

Proposition 22 will be the most expensive ballot campaign in California history.

Julius Young

Julius Young

What kind of work injury insurance does Prop. 22 provide for workers if passed by California voters? This blog post will examine that in some detail.

First, though, let’s take a 10,000-foot view.

Uber, Lyft, Doordash and other gig platform companies have unleashed a tsunami of spending in an effort to buy themselves exemption from Assembly Bill 5, which, along with the  California Supreme Court decision known as Dynamex, adopted new criteria for determining who is an employee or independent contractor. 

Dynamex was a wage order case, not a workers’ comp case. In 2020, while promoting their ballot measure, the gig platform companies have continued to fight in multiple forums over whether their drivers are employees under AB 5 and Dynamex. 

Under Prop. 22, the gig drivers and delivery people would be treated as independent contractors. Prop. 22 provides that they would be eligible for an “earnings floor” and that under certain conditions they would qualify for a Covered California health care subsidy, limited auto accident liability coverage and “occupational accident insurance.”

It is that last provision that is our focus here.

The initiative provides that the companies must maintain occupational accident insurance to cover medical expenses and lost income “resulting from injuries while the app-based driver is online with a network company’s online-enabled application or platform.”

Under the California Labor Code, work injuries and occupational diseases/illnesses are covered through California’s workers’ comp system as injuries. Notably, Prop. 22 does not mention coverage for occupational injuries or illnesses.

Prop. 22 does not define injuries. Whether such coverage defaults to various sections of the Labor Code that include occupational illness or disease is not clear. As a result, it may be argued by some that if an Uber or Lyft driver contracts COVID-19 or another communicable disease from passengers, the occupational accident insurance may not provide coverage. It’s not obvious whether this was intentionally left unclear when Prop. 22 was drafted.

In multiple ways, Prop. 22 does clearly fall short of the benefits provided under the California workers’ comp law.

Prop. 22 would require that occupational insurance cover medical expenses incurred only up to $1 million. While this might seem like a big number, in catastrophic injury claims medical bills can sometimes exceed $1 million. If a worker has a long hospitalization, multiple surgeries, a long period of rehabilitation and follow-up care over a period of years, bills can be astronomical.

California workers’ comp has no dollar treatment limits, and treatment is provided as long as it is reasonable, necessary and meets certain medical treatment protocols. So the medical treatment provisions under Prop. 22 are inferior to the requirements of the California Labor Code.

Important benefits under the California workers’ comp law are not provided to the gig drivers under Prop. 22.

Prop. 22 provides no money for vocational training if the injury is such that it permanently prevents the gig worker from resuming his or her platform-based work. Contrast this with the California workers’ comp system, which provides a retraining benefit ($6,000) as well as money from a special California supplemental return-to-work fund ($5,000).

And Prop. 22 provides no money to compensate the worker for permanent disability. California has a system to compensate workers for varying levels of permanent disability, defined as impairment of earning capacity, impairment of normal bodily use or competitive handicap in the labor market. Under the California Labor Code, workers may be entitled to a settlement or award depending on the extent of their disability. Prop. 22’s occupational insurance would not be required to compensate for this.

And if a gig worker suffers an injury that creates a permanent inability to engage in any kind of work in the labor market, Prop. 22 has no mechanism to provide ongoing weekly payments to the worker. That’s very much different from the system available to employees covered under California workers’ comp.

California law also provides various methods to calculate earnings for part-time workers and others with an irregular earnings history. Under the sole method of calculating earnings under Prop. 22, it appears that a worker with a short-term driving history could receive very limited weekly benefits, since other non-platform employment earnings would not enter the calculation.

Another concern about all this is that there is no clear mechanism to administer the occupational benefits under Prop. 22 and no clear dispute resolution process.

The bottom line is that Prop. 22’s occupational insurance provisions fall far short of the provisions of the California workers’ comp system. This is but one aspect of the debate over Prop. 22. And it is one that may be poorly understood by many gig workers and voters.

But these are important points. I’ll be voting no on Prop. 22.

Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.

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