SB 893 Proposal for Rebuttable Hospital Presumption Raises Coronavirus Questions

by John P. Kamin (March 9, 2020)

A California lawmaker has introduced a bill proposal that would expand legislative presumptions that a plethora of medical conditions are compensable for hospital workers, which raises significant questions about how it would affect litigation of potential COVID-19 coronavirus claims.

As we kicked off the 2020 California legislative session, lawmakers’ proposed amendments to 2019’s Assembly Bill 5 dominated the start of the session as various groups jostle over proposed changes to the independent contractor/employee test. However, lawmakers are moving forward with other parts of their agendas as well.

Perhaps the biggest potential cost-driver bill to date is Senate Bill 893, which would create a statutory rebuttable presumption for hospital employees who provide “direct patient care in an acute hospital to include infectious diseases and musculoskeletal injuries.” The presumption would presume that these infectious diseases arose out of and in the course of employment.

So what types of diseases or infections are we talking about here? The bill defines infectious disease as follows:
  • Tuberculosis
  • Meningitis
  • Staphylococcus aureus skin infections
  • Bloodborne infectious diseases, which is defined as “a disease caused by exposure to pathogenic micro-organisms that are present in human blood that can cause disease in humans, including those pathogenic micro-organisms defined as bloodborne pathogens by the Department of Industrial Relations.”
To be clear, this last element appeared to be aimed at bloodborne diseases like HIV, hepatitis C, malaria, syphilis, and other bloodborne conditions.

Now Labor Code 3208.05 already provides a presumption of injury for health care workers due to preventative care. This presumption of compensability may be triggered if a health care worker suffers an injury while undergoing care to prevent the development or manifestation of any bloodborne disease, illness, syndrome or condition recognized as occupationally incurred by Cal-OSHA, the federal CDC or other appropriate governmental entities.

For instance, LC 3208.05 lists hepatitis and HIV as examples of bloodborne diseases. However, LC 3208.05 also states that it is not limited to hepatitis and HIV.

LC 3208.05 defines bloodborne diseases as “a consequence of a documented exposure to blood or bodily fluid containing blood that arose out of and in the course of employment.”

BY MERE COINCIDENCE, THE BILL WAS PROPOSED AT THE SAME TIME AS THE COVID-19 VIRUS WAS SPREADING

Unfortunately, the spread of the dreadful COVID-19 coronavirus is something that all of the world’s citizens are facing right now. Here at home in the US, the Centers for Disease Control and Prevention warned that “disruptions to daily life could be 'severe',” and that extreme social distancing measures may be necessary.

There are now discussions about testing for the virus via a blood test, which was examined here in this piece by NPR. Currently, the most common COVID-19 test is performed by swabbing the nose of the patient and looking for matching sequences of the virus’ genetic material.

IS COVID-19 A BLOODBORNE DISEASE? PROBABLY NOT SAYS THE BLOOD BANKS

In light of the recent wave of COVID-19 coronavirus cases, this raises a rather pertinent question: can the coronavirus be transmitted by exposure to an infected patient’s blood? While I don’t think anyone definitively knows the answer for sure just yet, initial reports of quarantines seem to show a general consensus that the virus is generally considered a respiratory disease, and likely is spread through the air and contact with commonly-used surfaces.

That being said – the initial answer appears to be “no” based on this report from the American Association of Blood Banks (AABB), which is working closely with the CDC and the NIH. At least when looking at the Feb. 25, 2020 version of this document, the AABB writes:

    “The CDC’s latest situation summary updates are available on the web page 2019 Novel Coronavirus, Wuhan, China. Preliminary data suggest this virus may have arisen as a bat CoV, as did SARS before it jumped to palm civets and then to humans. Early reports have identified 2019-nCoV RNA in the blood of 15% of patients studied in a small Chinese series. The authors of that paper were careful to emphasize that RNA is not synonymous with infectious virus, which indicates there is no clear evidence for blood-borne transmission.”
As you can tell via the BBAA’s report at this link, they are still urging blood banks to take numerous precautions to help prevent blood transfusions from accidentally spreading the disease.

But if the general consensus is “no, COVID-19 is not a bloodborne virus” it would be nice to see this clarified in this legislation. Otherwise, we could see a large swath of litigation over whether COVID-19 is a bloodborne disease – and the initial research shows that it is not - so any allegations of bloodborne transmission should be deemed nonindustrial.

TIMING OF THE PRESUMPTION VERSUS TIMING OF THE INFECTION

Another key element of the bill is how and when the presumptions would take effect. The bill proposes:
  • The bloodborne infectious disease presumption, tuberculosis presumption, and meningitis presumption shall be extended to a hospital employee pursuant to paragraph (1) following termination of employment for a period of three calendar months for each full year of employment, but not to exceed 60 months, beginning with the last date actually worked in the specified capacity.
  • Notwithstanding paragraph (2), the methicillin-resistant Staphylococcus aureus skin infection presumption shall be extended to a hospital employee pursuant to paragraph (1) following termination of employment for a period of 90 days, beginning with the last day actually worked in the specified capacity.
For example, if you had a 5-year hospital employee come down with a bloodborne disease, tuberculosis, or meningitis – the presumption would apply to them for 15 months after their last date of work. For staph infections, that same hospital employee would have the presumption for 90 days after their last day of work.

The bill also suggests that preexisting conditions could be moot. To be specific, the bill says:
    An infectious disease that develops or manifests in a hospital employee who provides direct patient care in an acute care hospital shall not be attributed to a disease or skin infection that existed before that development or manifestation.
Well, these all seem to be rather important clauses, especially in light of the fact that this timeline could foreseeably take place:
  • Viral infections spread during the middle of 2020.
  • The bill is approved in the late summer.
  • The bill’s presumption takes effect on 1/1/2021.
That would create a scenario where hospital employees could be claiming industrial causation, and defendants would be attempting to rebut the presumption that causation occurred months and months earlier. This creates the potential for a rather massive amount of unnecessary litigation.

The easy solution to that problem is for lawmakers to add language to the bill clarifying that if symptoms of any of the bill’s protected diseases occurred before 1/1/2021, that causation would be presumed nonindustrial.

FORGET SB 893 – WHAT ABOUT COVID-19 CASES IN GENERAL?

As we noted in our other blog post about cases involving the COVID-19 coronavirus, it will be important to determine in COVID-19 cases:
  • Whether safety protocols were in place (for health care workers there usually are),
  • Whether the worker intentionally breached the safety protocols,
  • How the transmission occurred (coughing near someone’s face, touching an infected surface, etc).
In that blog post, we addressed the burden of proof, health care workers under the current state of the law, quarantines, and more.

CONCLUSION

Frankly, I’m not sure that the author of this bill intended to create a tsunami of unnecessary litigation. After all, the bill was proposed on January 26, 2020, which was eons ago in the life of this COVID-19 virus.

While the initial research from the BBAA, CDC and others shows that COVID-19 is probably not a bloodborne virus, it sure would be nice to see lawmakers amend the bill to avoid unnecessary litigation.

The simplest solutions for lawmakers are to a) either kill the bill, or b) amend the bill and clarify what conditions are presumed compensable, and c) clarify that the flu and the coronavirus are not presumed compensable because they are not considered bloodborne pathogens. And as noted earlier, lawmakers should add language to the bill clarifying that if symptoms of any of the bill’s protected diseases occurred before 1/1/2021, that causation would be presumed nonindustrial.

State lawmakers are anticipating taking a closer look at this and other legislative proposals in April, when they begin to hear testimony and start voting on the various bills in their respective chambers.

Until then, let’s all follow the CDC’s prevention tips to avoid catching and spreading the virus, which are:
  • Avoid close contact with people who are sick.
  • Avoid touching your eyes, nose, and mouth.
  • Stay home when you are sick.
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash.
  • Clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe.
  • Follow CDC’s recommendations for using a facemask.
  • Wash your hands often with soap and water for at least 20 seconds, especially after going to the bathroom; before eating; and after blowing your nose, coughing, or sneezing.
(This article was written on 3/6/2020. Please note that any links to public health websites could be altered or edited after the date of publication.)

Got a question about workers’ compensation defense issues or pending workers’ compensation legislation? Feel free to contact John Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Tarzana location, where he heads the firm’s Sports Law Division and watches the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist, where he reported on work-related injuries in all 50 states. Feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.

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