Grinberg: COVID-19 Presumption for Fire, Police and Health Care Workers

Tuesday, April 28, 2020 | 1

Here we are, watching with bated breath as we wait to see what happens to the residents of states opening up in the face of looming coronavirus threats. Will it all be OK? Will there be massive spikes in coronavirus cases and deaths?

Gregory Grinberg

Well, while we’re waiting to see the results of yet another great experiment in federalism, let’s turn our attention back to California. The first of the COVID-19 presumption bills is now before the California Legislature. 

Assembly Bill 664 would amend the Labor Code to make active firefighters, peace officers and health care employees who provide direct patient care eligible for a presumption of compensability in certain cases.

So here’s the basic idea:

• If you’re a firefighter, peace officer or health care worker involved in direct patient care, this will apply to you.
• The scope of “injury” now includes being sent into quarantine, even if there are no actual symptoms or health effects, so long as there is a state of emergency declared in California (before or after the order to go into quarantine).
• In addition to the typical workers’ compensation benefits, an employee so “injured” is entitled to reimbursement for temporary housing and personal protective equipment costs, both to prevent infection/exposure to self and to others.
• An injury of this sort shall be conclusively presumed to arise out of and in the course of employment up to 90 days after the last day worked, presumably without regard for the reason the employment ended.

So let’s take a look at some wacky scenarios under the proposed AB 664.

Nurse retires and, to celebrate her career, goes on a trip around the world. Her flight leaves 30 days after her retirement party and she gets back 30 days later, showing her first symptoms as she gets back from the airport. Industrial? Under AB 664, it would be.

Peace officer is driving home from work in his own car when he gets T-boned by a distracted driver. He gets taken to a hospital and stays there for a spell in intensive care. A week after being sent home from the hospital to recover, he starts showing COVID-19 symptoms. Industrial? Under AB 664, it would be. 

Firefighter’s brother falls ill with COVID-19 symptoms. After a week of toughing it out, his brother asks him to take his kids so that he can try to recover without child care burdens. A week after the firefighter’s niece and nephew move in, he develops COVID-19 symptoms of his own. Industrial? Under AB 664, it would be.

I am not a fan of this and find it a legislative overreach. There is no basis in science or even reason to extend a presumption of industrial causation up to 90 days from the last day worked. There is no reason to consider the need for quarantine an “injury” as contemplated by the Labor Code, especially if the “injured” worker shows no symptoms and suffers no harm other than the quarantine itself.

Buckle in. The fun is just beginning. 

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.