13 Jul 2022

The Million Dollar Question on COVID-19 Presumptions: RAND’s Latest Study Expected to Guide the California Legislature

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board

The Commission on Health, Safety and Worker’s Compensation (CHSWC) is responsible for on-going monitoring of California’s workers compensation system. As part of its oversight responsibilities, CHSWC asked The RAND Corporation (RAND) to evaluate how COVID-19 has affected the system. In particular, CHSWC asked RAND to evaluate the impact of the presumptions enacted by Senate Bill 1159. Those presumptions were intended to facilitate access to workers’ compensation for certain employees whose work placed them at a high risk of COVID-19 exposure. RAND issued its initial evaluation in January 2022. The study, COVID-19 in the California Workers’ Compensation System: A Study of COVID-19 Claims and Presumptions under Senate Bill 1159 (January 2022), was previously discussed in the article, RAND Study Sheds Light on COVID-19’s Impact on California’s Workers’ Compensation System (see https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/posts/rand-study-sheds-light-on-covid-19-s-impact-on-california-workers-compensation-system).

RAND has now issued a follow-up to that study, COVID-19’s Impacts on California’s Workers’ Compensation System: Evaluating the Effects of Senate Bill 1159 (May 2022) (see https://www.rand.org/pubs/research_briefs/RBA1430-1.html). The follow-up confirms previous findings and observations that were detailed in the article mentioned above. In addition, the follow-up offers some important observations. Foremost, RAND reports that Senate Bill 1159 did facilitate access to benefits for those workers at the highest risk of exposure to COVID-19. Some of those workers, often referred to as “frontline,” generally work in healthcare and public safety. Similarly, the “outbreak” presumption facilitated access to benefits for workers in such essential industries as food services, transportation, warehousing and manufacturing. Frontline and essential workers continued to work outside of their homes during the pandemic and the nature of their jobs placed them at high risk of exposure to the disease. Given the highly transmissible nature of COVID-19, the effect of the presumptions was to obviate the need for protracted proceedings and expert medical testimony on the likelihood that an infection arose out of and occurred in the course of employment.

Next, RAND reports that the shortened time-frames under Senate Bill 1159 for accepting/denying claims did not meaningfully assist workers. The shortened time-frames (30-45 days to accept or deny a claim) were also quite challenging for employers. While this finding would suggest shortened time frames were not necessary, RAND does caution that the special Federal and State programs that provided paid leave and promoted full access to COVID-19-related medical treatment were key in assisting workers. Notably, RAND credits these programs as doing more than Senate Bill 1159 to protect workers from income loss and medical expenditures. Since these special Federal and State policies have ended, RAND suggests that workers’ compensation benefits may be much more important to workers in future phases of the pandemic.

Third, RAND observes that its findings do not rule out the possibility that workers’ compensation benefits for permanent disability or death could be extremely important to workers who experience the worst outcomes from COVID-19. Additionally, workers’ compensation benefits may prove to be critical for workers who develop “long COVID.”

RAND concludes the report with a significant observation: notwithstanding the availability of effective vaccines and medications, COVID-19 continues to mutate and surge, placing those workers who work outside of their homes at risk of exposure on the job. Because so much remains unknown about COVID-19, further research is critical to better understand how COVID-19 exposure rates, volume of COVID-19 claims and claim outcomes vary across California by industry and occupation.

Right now the million-dollar question is whether Senate Bill 1159’s presumptions will sunset or be extended by further Legislative action. RAND’s report will surely guide that important policy decision.