Last week we had the opportunity to opine on the “Silly Season of Legislative Activity” by discussing California’s thoroughly misguided AB 1465, which would require the administrative director of the state’s workers’ compensation system to establish a statewide medical provider network called the California Medical Provider Network. It is a horrible idea that will provide no foreseeable benefits to employers or their injured workers, but it is not the only terrible idea being considered in the Golden State. They also are considering SB 213, a bill that takes the recent trend for automatic first responder presumptions and expands it to health care workers.
And today we get to opine on that. Lucky us.
California’s SB 213 would, according to the Legislative Digest, “define ‘injury,’ for a hospital employee who provides direct patient care in an acute care hospital, to include infectious diseases, cancer, musculoskeletal injuries, post-traumatic stress disorder, and respiratory diseases. The bill would create rebuttable presumptions that these injuries that develop or manifest in a hospital employee who provides direct patient care in an acute care hospital arose out of and in the course of the employment. The bill would extend these presumptions for specified time periods after the hospital employee’s termination of employment.”
It casts a fairly broad net that can incorporate a multitude of potential illnesses and injuries while creating rebuttable presumptions for many new claims. Certainly, healthcare workers face some exposure to infectious diseases in the workplace, but they also face them in the off-duty world as well. Recent findings in a study released last month also suggest that healthcare workers who contracted Covid were more likely to have been exposed in the community, meaning it was not work-related. As for cancer, PTSD, and respiratory diseases, there is reasonable science that will tell you not all incidents will be born in the workplace.
But thanks to the trends of rebuttable presumptions, employers will, if this bill becomes law, be put in the unenviable position of proving that something “didn’t happen.” Proving a negative can be such a pesky challenge.
You cannot say you weren’t warned. We’ve been cautioning that “rebuttable presumptions” for first responders didn’t just create a two-tiered system of injured workers, but indeed laid the foundation for the continued expansion of automatic presumptions to other labor categories. These legislative efforts are not based on science, but rather political expediency. And the presumptions they create are not based on actual exposures, but rather on the job title of the employee involved.
That is no way to run a workers’ compensation system. Except that seems to be what is trending for our industry, at least in California’s silly season of legislative activity.