December 28th, 2023
Sure Log
Attorney of Counsel, Michael Sullivan & Associates, LLP

In 2020, the California Legislature passed Senate Bill 1159 (SB 1159), which established a rebuttable presumption for specified employees that illness or death resulting from COVID-19 arose out of and in the course of employment. The presumptions were established in Labor Code §§ 3212.86, LC 3212.87 and LC 3212.88.

In the Senate Floor Analysis for SB 1159, the Legislature believed that the burden of fighting COVID-19 had fallen disproportionately on a small group of workers in both the private and public sectors. The presumptions were enacted to reduce the barriers to accessing the workers’ compensation system for essential workers suffering from COVID-19.^[1] So for several years, the COVID-19 presumptions made it easier for many workers to prove entitlement to workers’ compensation benefits for illnesses related to COVID-19.

But the COVID-19 presumptions were never meant to last indefinitely. Originally, they were to be repealed Jan. 1, 2023, but the sunset date was extended to Jan. 1, 2024 by Assembly Bill 1751 (AB 1751). In the Assembly Floor Analysis for AB 1751, the Legislature explained that “[T]here is no real detriment to extending the presumption for one year. As the spread of COVID-19 diminishes, claims will naturally decrease, and the presumptions will be used less frequently, particularly the outbreak presumption, but still available for those who need it.”^[2]

LC 3212.86, LC 3212.87 and LC 3212.88 were all amended to state, “This section shall remain in effect only until January 1, 2024, and as of that date is repealed.” Those statutes were not extended further, so the Legislature has determined that the COVID-19 presumptions are no longer needed. As of Jan. 1, 2024, the COVID-19 presumptions are repealed. The obvious question is how this will affect COVID-19 claims moving forward.

There is no question that employees with COVID-19 claims with dates of injury on or after Jan. 1, 2024 will not be able to establish entitlement to workers’ compensation benefits using a statutory presumption. But it probably also means that employees with COVID-19 claims with dates of injury prior to Jan. 1, 2024 will not be able to benefit from the presumptions established in the repealed statutes.

The courts have dealt with repealed statutes before, and they have uniformly held that the repeal of a statute, without a savings clause, applies to any matter that was pending prior to the repeal. That’s because the right to workers’ compensation benefits is wholly statutory, and all statutory remedies are pursued with the full realization that the Legislature may abolish the right to recovery at any time.

The courts have stated, “The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered.” (See Rio Linda Union School District v. WCAB (Scheftner) (2005) 131 Cal. App. 4th 517, 528; Beverly Hilton Hotel v. WCAB (Boganim) (2009) 176 Cal. App. 4th 1597, 1606.)

A saving clause generally is used in a repealing act to preserve rights and claims that would otherwise be lost. LC 3212.86, LC 3212.87 and LC 3212.88, however, do not contain saving clauses. There is nothing in the statutes indicating a legislative intent that any rights in those statutes survive beyond Jan. 1, 2024.

So it’s reasonable to conclude that on Jan. 1, 2024, compensability for any COVID-19 claim that has not been resolved by a final order cannot be established by the former COVID-19 presumptions. Moreover, for any ongoing appeals involving the compensability of a COVID-19 claim, the WCAB will not be able to rely on the COVID-19 presumptions to support a compensability finding.

Beyond reducing the required burden for a compensable COVID-19 claim, the COVID-19 presumptions also mandated certain actions by employers and claims administrators. LC 3212.86 – LC 3212.88 shortened the investigation periods for COVID-19 claims and required payment of temporary disability benefits without application of the waiting period. In addition, LC 3212.88 established reporting requirements for employers so it could be determined whether there was a COVID-19 outbreak at the place of employment. Those provisions would not be effective after Jan. 1, 2024.

Nevertheless, the repeal of the COVID-19 presumptions does not mean employers may deny all COVID-19 claims that were previously accepted. LC 5402 will still apply. So, if a COVID-19 claim was not rejected within 90 days after the filing of a claim form, it’s probably presumed to be compensable under § 5402.

Moreover, employees still may establish the compensability of COVID-19 claims under the standard rules for compensability for nonoccupational diseases. The Supreme Court has explained:

[I]n the area of nonoccupational disease, “[t]he fact that an employee contracts a disease while employed or becomes disabled from the natural progress of a nonindustrial disease during employment will not establish the causal connection.” [Citation.] The narrower rule applicable to infectious diseases arises from the obvious problems of determining causation when the source of injury is of uncertain etiology, the product of invisible and often widespread viral, bacterial, or other pathological organisms. The potentially high costs of avoidance and treatment for infectious diseases, coupled with the fact that such illnesses often cannot be shown with certainty to have resulted from exposure in the workplace, also explain the different line-drawing by our courts in the area of nonoccupational disease. (Latourette v. WCAB (1998) 17 Cal. 4th 644, 654, citations and quotations omitted.)

Therefore, to establish that such diseases were compensable, employees generally must establish that either: (1) the employment subjected them to an increased risk compared with that of the general public; or (2) the immediate cause of the injury is an intervening human agency or instrumentality of the employment. (Latourette v. WCAB (1998) 17 Cal. 4th 644, 654.) Although they would appear to be factual or legal issues, the WCAB generally has required medical evidence to establish causation for COVID-19 claims not covered by a presumption.

COVID-19 claims probably will become less common, as most people now have some form of immunity to the disease, either through vaccination or naturally. One hopes that COVID-19 one day will be treated like the common cold or flu, for which people take sick days rather than seek workers’ compensation benefits. For further discussion on the compensability of COVID-19 claims, see Sullivan on Comp Section 5.11 Occupational Disease –– COVID-19.

1. 1. The Assembly Floor Analysis and Senate Floor Analysis for SB 1159 are available from the California Legislative Information website.
   2. The Assembly Floor Analysis and Senate Floor Analysis for AB 1751 are available from the California Legislative Information website.