Viewpoint: California COVID-19 Presumptions Set to Expire

California’s COVID-19 presumptions will expire on Jan. 1, 2024, which means employer-related outbreak reporting and shortened-decision timeframes are going the way of the dinosaur.

The last sentence of Labor Code sections 3212.86, 3212.87, and 3212.88 says that they expire on 1/1/24, and lawmakers did not pass any new legislation this year to extend them.

This means that the active presumptions, which we currently refer to as the “first responder presumption” and the “outbreak presumption” will no longer apply to COVID claims.

Below, we will go over the changes to burden of proof, employer reporting, COVID testing, and other topics.

Understanding presumptions requires a strong understanding of the burden of proof:

• With a presumption of compensability, the injury is presumed to be industrial and it’s the defendant’s burden to rebut that presumption.
• Without a presumption, the burden is on the injured worker to prove by a preponderance of the evidence (think more than 50%) that their work put them at greater risk of contracting COVID-19 than their nonindustrial life.

Prior to the expiration of the statutes, if a presumption did not apply, the burden of proof falls on the injured worker to prove that their work put them at greater risk of contracting COVID-19.

Going forward, all COVID cases will now return to the applicant having to prove up their case.

Another key element of the presumptions was the shortened decision timeframes, as the first responder presumption had a decision date of 30 days and the outbreak presumption had a 45-day decision timeframe. The expiration of the presumptions means that these types of claims will revert back to a 90-day decision timeframe, which should relax the burden on claims adjusters who were previously trying to investigate and make the appropriate decision within these shorter decision deadlines.

The expiration of the statutes ends mandatory employer-reporting of all positive COVID tests to their administrator and/or carrier. Before the expiration of the statute, employers could face severe penalties if they failed to do this pursuant to Labor Code 3212.88, which we refer to as the “outbreak presumption.”

Now that the presumptions are expiring, that mandatory reporting will no longer be necessary.

However, employers should still report any cases to their administrators where their employees have informed them that they believe they got COVID-19 via work. After all, whether it’s a knee injury or a COVID infection, allegations of work-related injuries still must be immediately reported to claims adjusters so they can respond appropriately.

Many of you may recall that the COVID-19 presumptions required a positive test that can detect the viral RNA of the coronavirus, and that the test must be FDA-approved. We here at Bradford & Barthel interpreted that as a mandate for a PCR test, because PCR tests actually detect the viral RNA of the virus, whereas antigen (aka rapid or at-home) tests simply detect proteins created by the virus. Because of the difference between the two tests, antigen tests have been proven to have a far lower accuracy rate and tend to produce more false negatives.

This meant that if one did not have a PCR test, then one did not meet the statutory criteria under the first responder or outbreak presumptions.

All of this begs the question – what type of test will be required by a judge when evaluating whether an applicant satisfied their burden of proof?

To be clear, PCR tests are the gold standard, and those test results usually feature the applicant’s name, date, and other identifying information. Conversely, antigen tests are usually just photographed by users, without any identifying information in the background.

This means that one could have someone else test positive, take a picture of it, and then pretend that it was their test. Who would ever know?

As such, if a party does rely on a rapid test in the future, they should absolutely have identifiable information in the photograph of the positive test, such as the name, date, time, and a witness to authenticate that they did indeed take that exact test.

Alternatively, circumstantial evidence could also be useful – for instance, if the applicant saw medical doctor who diagnosed them with COVID-19, then that could also help corroborate an otherwise questionable antigen test.

Defendants should be wary of sketchy photos of an old rapid test, as that does not appear to meet the standard to satisfy the burden of proof that they actually had COVID. After all, COVID-19 does have numerous overlapping symptoms that are also found in the flu, colds, gastrointestinal bugs, and other viruses and bacterial infections. Just because someone thought they had COVID doesn’t actually mean that they did indeed have it.

As we head into 2024, it will be a bit of a bumpy ride for those who have a) year-end outbreaks fueled by holiday get-togethers and b) those of us who are adjusting to the post-presumption world. That being said, employers and adjusters will likely be happy to relax on hurried outbreak analyses to meet shortened decision timeframes.