The
pandemic caused by the coronavirus disease (COVID-19) is impacting almost every
aspect of Californian lives, including how we live and work. Every cough, runny nose and even headache can
make a person wonder if they have contracted this virus. To make matters worse
our first responders and front-line medical personnel continue to perform their
essential services to our communities while most Californians are under the
protection of a public health directive to shelter in place.
While
the general public shelters in place, our first responders face a mounting risk
of exposure to COVID-19. This public
health crisis is transforming into an ever-expanding first responder crisis as
peace officers, firefighters, and medical personnel contract the virus as they
perform their essential services. Given
these facts, the logical question is what will happen to our first responders
if and when they contract COVID-19. Does California have a plan for them?
Workers’
Compensation
The purpose of Workers’ Compensation is to provide monetary
and medical benefits to people who become injured while working in the course
and scope of their job duties. Part of the workers’ compensation process is to
separate work related from non-work-related claims. In the context of a disease
such as COVID-19, this becomes very difficult to do
in practice.
Increased Risk to Exposure
However, there is a recognizable link between the nature of
a first responder’s job and an increased risk of contracting the disease. First
responders typically encounter a wide variety of exposures at work, including
but not limited to bodily fluids, sneezing/coughing, and the unavoidable
touching of unclean surfaces. Historically, when dealing with other injuries
that first responders face a greater risk of suffering than the public, our
State Legislature has acted to create a presumptive injury status for certain
injuries.
Presumptive Injuries
The presumption effectively shifts the burden of
establishing causation. This means the
argument switches from the employee’s burden to establish that he suffered an industrial
injury to a burden upon the employer.
The employer must rebut that the injury suffered was not from industrial
exposure. For example, there are
presumptions for certain first responders who suffer pneumonia, meningitis,
tuberculosis, etc.
At present, there is inadequate formal guidance from the
State of California as to whether any Workers’ Compensation presumptions would
apply to our first responders in the event of a confirmed COVID-19 infection. In the absence of a presumption, the burden
is on the injured first responder to prove that they were at a greater risk of
exposure to COVID-19 at the time they contracted the illness.
Record of Exposure
If a first responder is exposed to an individual whom is
believed to have the virus the first responder should attempt to establish a
record of known or suspected exposure to COVID-19 at work. This evidence may
include information as to the time of the exposure, the location of the exposure,
the mechanism of transmission, if known, and any other knowledge or observation
of COVID-19 symptomatology present at the workplace. This information must be
communicated to the employer as well.
In addition to providing information about any potential
exposure to COVID-19, the injured first responder must provide medical evidence
that they have actually sustained an infection. The preference is medical
testing. However, in the absence of test results, there will need to be a
diagnosis from a licensed physician of a suspected COVID-19 case. In addition
to the diagnosis itself, relevant medical information includes any medical
evidence which tends to show that COVID-19 was accelerated, aggravated, or
precipitated by job duties.
However, Mastagni Holstedt, APC is asserting that injuries caused by a COVID-19 exposure and/or infection should fall under one of the existing public safety presumptions. The legislative intent behind the creation of a public safety presumptive injury in the California Labor Code is to offer additional protection to first responders who put their lives at risk for the public’s benefit. The risk they take while assisting the public through the COVID-19 pandemic is no different.
Creating a COVID-19 Presumption
It remains to be seen if Mastagni Holstedt will prevail in
our arguments that one or more of the existing presumptions should be extended
to cover injuries caused by COVID-19 because at the time the presumptions were
codified COVID-19 did not exist.
However, there are separate efforts underway to create a new presumption
in law. Fire fighter and law enforcement advocates, such
as the Peace Officer Research Association of California (“PORAC”) and the California Professional Fire Fighters ("CPF"), have urged California Governor Gavin Newsom and
the State Legislature to create a presumptive injury for our first responders
exposed to or inflected with COVID-19. These efforts are ongoing.
The State Legislature is currently debating Assembly Bill
No. 664 which seeks to define “injury” for certain state and local firefighting
personnel, peace officers, certain hospital employees, and certain fire and rescue
services coordinators to include being exposed to or contacting a communicable
disease, including COVID-19. The
proposed bill would create conclusive presumption, as specified, that the
injury arose out of and in the course of employment.
If you or someone you know needs help with this fight please contact Mastagni, Holstedt, A.P.C. for an advocate who supports what you do for our communities and who will fight this legal battle with you.
