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California Legislative Summary: Workers’ Compensation 2023 Mid-Session
The 2023 legislative session in California has been very active as it looks to address student safety and the opioid crisis. However, on the workers’ compensation front there have been efforts to expand presumption rules, extend TD periods, and change the utilization rules.
As the Legislature reconvened from the Summer Recess on August 14, we would like to review some bills under consideration. The legislature will have to meet certain deadlines to pass the proposals in the 2023 legislative year.
- September 1, 2023 – Last day for fiscal committees to meet and report bills
- September 8, 2023 – Last day to amend bills on the floor
- September 14, 2023 – Last day for each house to pass bills
- October 14, 2023 – Last day for the Governor to sign or veto bills passed by the Legislature
Workers Compensation
AB 597 – Workers’ Compensation: First Responders: Post-Traumatic Stress
Current law allows for compensation to an employee for injuries, including post-traumatic stress, sustained in the course of employment for certain state and local firefighting personnel and peace officers until January 1, 2025. This bill would have made the presumptions available for emergency medical technicians and paramedics for injuries occurring on or after January 1, 2024.
Status: The bill was held in the Assembly Insurance committee. It is unlikely that this bill will become law this year
AB 1145 – Workers’ Compensation
Current law, until January 1, 2025, provides that certain state and local firefighting and peace officers injured in the course of employment are entitled to workers compensation benefits, where injury includes post-traumatic stress disorder that developed during a certain period and establishes a disputable presumption. This bill extends the disputable presumption until January 1, 2030, to apply to certain state nurses, psychiatric technicians, and various medical and social services specialists.
Status: The bill was passed in the Assembly. It was currently placed in the suspense file in the Senate Appropriations Committee. This bill would specifically impact employees of the California Department of Corrections and Rehabilitation, the Department of Developmental Services, and the Department of Hospitals.
AB 1156 – Workers’ Compensation: Hospital Employees
Current law creates a rebuttable presumption for specified injuries sustained arising in the course and scope of employment for specified members of law enforcement or a specified first responder. Furthermore, until January 1, 2024, the rebuttable presumption applies to employees who work at a health facility where it includes an illness or death resulting from COVID-19. This bill would extend the presumption for hospital employees who provide direct patient care in an acute care hospital for injuries to include infectious diseases, cancer, musculoskeletal injuries, PTSD, and respiratory illnesses.
Status: The bill was held in the Assembly Insurance Committee. It is unlikely that this bill will become law this year.
AB 489 - Workers’ Compensation: Disability Payments
Current law allows an employer to provide disability indemnity payments via a prepaid card account for employers until January 1, 2024. This bill extends the sunset date until January 1, 2025.
Status: The bill was signed into law by the Governor on July 13, 2023.
AB 621 – Workers’ Compensation: Special Death Benefit
Current law states that no benefits, except reasonable burial expenses not exceeding $1,000, may be awarded due to the death of an employee who is an active member of the Public Employee’s Retirement System unless death benefits are available under the Public Employee’s Retirement Law are less than the workers’ compensation death benefits. In that case, the surviving spouse and children are also entitled to the difference between the two death benefits, unless a law exempts certain members from this limitation. This bill would expand the exemption to include state safety members, peace officers, and firefighters for the Department of Forestry and Fire protection who are members of Bargaining Unit 8.
Status: The bill was passed in the Assembly. It was currently placed in the suspense file in the Senate Appropriations Committee.
AB 1213 – Workers’ Compensation: Aggregate Disability Payments
Current law requires that aggregate disability payments for a single injury occurring on or after certain dates be limited. This bill until January 1, 2027, would require that any temporary disability benefits paid or owed from the date of a denial of treatment requested by a treating physician that is subsequently overturned by independent medical review or by the Workers’ Compensation Appeals Board not be included in the calculation of the aggregate disability payments.
Status: The bill was passed in the Assembly. It was currently placed in the suspense file in the Senate Appropriations Committee. Since introduced, this bill has been amended several times, that would mitigate the impact of the bill.
SB 636 – Workers’ Compensation: Utilization Review
Current law requires employers to secure the payment of workers’ compensation injuries by their employees that arise out of, and in the course, of employment. This bill would require, starting on January 1, 2025, for private employers, that their Utilization Review (UR) be performed by medical professionals licensed under California law.
Status: The bill was passed in the Senate. It was ordered to a third reading. Those supporting the bill argue that it will increase accountability as it guarantees workers are provided a fair claim review process by California’s licensing standards. However, the opposition notes that this bill may limit the number of doctors available to conduct Utilization Reviews.
AB 331 – Automated Decision Tools
This bill would prohibit the use of an automated decision tool, a system or service that uses artificial intelligence, that results in algorithmic discrimination. The bill also provides for civil action against the entity that uses the tool that results in algorithmic discrimination and makes them liable for compensatory damages.
Status: The bill was held in the Assembly Appropriations suspense file. The bill will unlikely become law this year. However, with the increased use of AI, this may be a topic that the legislature may want to address in the future.
AB 520 – Employment: Public Entities
Current law states that any individual or business entity that contracts for services in the property services or long-term care industries is jointly and severally liable for unpaid wages, including interest, where the business entity has been provided notice of any proceeding or investigation by the Labor Commissioner in which the employer is found liable for those unpaid wages. This bill additionally provides that any public entity, as defined, and any other political subdivision or public corporation in the state, is jointly and severally liable for any unpaid wages. Property services means janitorial, security guard, valet parking, landscaping, and gardening services.
Status: This bill has passed in the Assembly and referred to the Senate. The bill was placed in the Appropriations Suspense file.
This bill would authorize a permanent classified school district employee, excluding a peace officer, to appeal disciplinary action to an impartial third-party hearing officer, paid by the school district and jointly selected by the district and the employee or the employees exclusive representative from a list of seven arbitrators obtained by the parties from the California State Mediation and Conciliation Service, unless the employee organization and the school district enter into an agreement providing an alternative mention of appealing disciplinary action. Permanent classified employees of a community college district can also require a hearing on the charges lodged against the employee where as an impartial third party hearing officer, paid for by the community college district and jointly selected by the district and the employee or the employee organization from a list of seven arbitrators obtained by the parties from the California State Mediation and Conciliation Service, to determine whether sufficient cause exists for disciplinary action against the employee, excluding a peace officer, unless the employee organization and the district enter into an agreement providing an alternative method of determining cause, or an alternative method of selecting a third party hearing officer. The bill also requires the court, for judicial review of an impartial third-party hearing officers’ decision for disciplinary action by a community college district, to exercise independent judgement on the evidence and for the hearing to be set at the earliest possible date and take precedence over all over cases, unless an exception applies. The bill would also extend to the classified employees of all JPA’s that include a school district or a community college district.
Status: The bill has passed in the Senate and referred to the Assembly. It was last amended on June 29. It was referred to the Senate Appropriations Committee suspense file. Parties opposing the bill argue that the cost of disciplinary appeals would be funded entirely by the Local Education Agency (LEA). Those in support argue that it is unfair for the same board that took the initial vote to discipline an employee to also be the appellate body.
SB 497 – Protected Employee Conduct
Current law prohibits an employer from discharging, discriminating, retaliating, or taking any adverse action against any employee engaged in protected conduct. Also, an employer is prohibited from paying an employee at wage rates less than the rates paid to an employee of the opposite sex for substantially similar work, except upon a specified demonstration by the employer. This bill establishes a rebuttable presumption in favor of an employee’s retaliation claim if an employer engages in any disciplinary behavior within 90 days of an employee engaging in specified protected activity and directs recovery of civil penalties for a violation of whistleblower protections to the affected employee.
Status: This bill has passed in the Senate and has been currently referred to the Assembly Appropriations Committee with the hearing set for August 23.
Claims Against Public Agencies
AB 299 – Hazing: Educational Institution: Civil Liability: Resources
Current law makes it unlawful to engage in hazing, that is likely to cause serious bodily injury, as a method of initiation or preinitiation into a student organization or student body, whether the organization or student body is officially recognized by an educational institution. Civil liability is currently attached for hazing participants or the organization. This bill, beginning on January 1, 2025, additionally establishes civil liability for an educational institution, defined as a public or private institution of higher education, if the institution has direct involvement in, or knew, or in the exercise of ordinary care reasonably should have known of the hazing practices. This would include if the institution unreasonably fails to proactively prevent, discover, or stop the hazing practices. The State Department of Education is to make available on or before July 1, 2024, a model antihazing policy for LEAs and resources on hazing prevention and awareness.
Status: This bill was passed in the Assembly and has now been referred to the Senate. The bill was placed on Senate Appropriations suspense file.
AB 452 – Childhood Sexual Assault: Statute Of Limitation
Current law requires that specified recovery for damages suffered because of childhood sexual assault, must be commenced within 22 years for the date the plaintiff reaches 18 years old or within 5 years of the date the plaintiff discovers or should have discovered the psychological injury after reaching 18 years old that was caused by the sexual assault, whichever occurs later. This bill would eliminate the statute of limitation to recover damages suffered as a result of childhood sexual assault for claims against third parties arising on and after January 1, 2024.
Status: Since being introduced, this bill has been amended several times. This bill was also placed on the Senate Appropriations suspense file. This bill is being closely watched, as if passed it can have a significant impact on school districts and local governments.
AB 942 – Postsecondary Education: Sex-Equity
Current law prohibits a person from being discriminated on the basis of specified attributes, including sex, in a program or activity held by a postsecondary educational institution that receives state student financial aid. Furthermore, current law provides that sexual harassment is a form of sex discrimination. This bill provides that sexual harassment of students is a form of sex-based harassment and sex-based discrimination.
Status: This bill was held in the Assembly Higher Education Committee. This bill is essentially dead for the 2023 Legislative calendar.
AB 1166 – Liability for Opioid Antagonist Administration
Current law provides that a person who, in good faith and not compensated, renders emergency or non-medical care or assistance at the scene of an emergency is not liable for civil damages resulting from an act or omission, unless the act was done with gross negligence or willful or wanton misconduct. This bill extends the qualified immunity to those administering emergency opioid antagonists.
Status: This bill was signed into the law by the Governor. (Baines, Chapter 97, Statutes of 2023)
AB 1371 – Unlawful Sexual Intercourse With a Minor
This bill would prohibit a person who is 21 years of age or older, who is convicted of statutory rape with a minor under 16 years age, from completing community service at a school or location where children congregate.
Status: This bill has passed in the Assembly and has been ordered for a third reading in the Senate. Most likely this bill will be passed by the legislature and will await the governor’s signature to become law.
AB 19 – Pupil Health: Opioid Antagonist
Current law authorizes LEAs to provide and use emergency naloxone hydrochloride (Narcan) or another opioid antagonist to school nurses or voluntary trained personnel to aid persons suffering an opioid overdose. This bill will require those schools opting to make a school nurse or trained volunteer available to administer the emergency naloxone hydrochloride to maintain at least two units for emergency use.
Status: This bill has passed in the Assembly and was placed in the Senate Appropriations suspense file.
AB 70 – Emergency Response: Trauma Kit
Current law requires a person or entity responsible for managing buildings, facility, and tenants of certain occupied structures, including those owned by a local government entity, that is constructed on or after January 1, 2023, to acquire and place at least six trauma kits on the premises. This bill would apply the trauma kit requirement to apply to certain structures that were constructed prior to January 1, 2023, and subject to modifications, renovations, or tenant improvements.
Status: This bill was passed in the Assembly and is currently ordered for a third reading in the Senate. The bill expands the requirements passed last year in AB 2260 (Rodriguez, Chapter 586, Statutes of 2022) as part of the “Stop the Bleed” campaign. Keenan has provided a summary of AB 2260: https://www.keenan.com/Resources/Briefings/Briefings-Detail/ab-2260-requires-trauma-kits-for-buildings-constructed-on-or-after-january-1-2023.
AB 249 – Water: School site: Lead Testing: Conservation
This bill requires a community water system serving a school site receiving federal Title I funds to test for lead in each of the sites potable water system outlets. The results are to be reported to the State Water Resources Control Board (SWB) and, if lead levels exceed five parts per billion, the LEA or school site must notify the parents of students who attend the school site and immediately take steps to shut down the water system outlets where the excess lead levers may exist. The bill also requires a sampling plan for each school site where lead sampling is required. The bill also expands SWB’s authority to issue citations and penalties for violations.
Status: This bill has passed in the Assembly and currently in the committee process in the Senate and has been referred to Senate Suspense file.
AB 889 – Pupil Safety: Parental Notification: Synthetic Drugs
Current law requires LEAs at the beginning of the first semester or quarter of each year, to notify parents of specified rights and responsibilities of the parent and of policies and procedures. This bill requires LEAs to inform parents of the dangers associated with using synthetic drugs as part of the yearly notification. This information is to be posted on its internet websites as specified.
Status: This bill was signed into law by the Governor on July 27, 2023 (an act to add Section 48985.5 to the Education Code).
AB 915 – Pupil Health: Drug Education: Opioid Overdose Training Program
This bill would require the California Department of Public Health to establish a certification training program for public high school students in grades 9-12 to gain skills in how to identify and respond to opioid overdose, including how to administer naloxone hydrochloride nasal spray. If the high school voluntarily determines to make the opioid antagonist available on campus, it will have to be available in a specified location that are easily accessible.
Status: The bill was passed in the Assembly and is currently placed on the Senate Appropriations Suspense file.
AB 1299 – School Safety: School Resource Officers: School Police Officers: School Safety Plans
This bill would have required a peace officer, including school resource officers employed by the LEA to report directly to the principal of the school while on the school campus.
Status: This bill failed in the Assembly Education Committee. This bill will not become law this year, but can be revisited in 2024.
SB 88 – Pupil Transportation: Driver Qualifications
This bill would place various requirements upon a driver who provides certain transportation services for students to be mandated reporters and submit and clear tuberculosis risk assessments. Furthermore, any vehicle used to transport students for compensation by a LEA is to be inspected and equipped with a first aid kit and a fire extinguisher.
Status: This bill was passed in the Senate and is currently set for hearing in the Assembly Appropriations Committee.
SB 531 – Pupil Safety: Local Educational Agency Contractors: Background Checks
Current law requires that any entity that has a contract with a local educational agency whose employees interact with pupils, outside of the immediate supervision and control of the student’s parents, have a valid criminal records summary. This bill exempts entities that offer work experience opportunities for students or workplace placements to have a valid criminal records summary if certain requirements are met.
Status: It is an active bill and re-referred to the Assembly Appropriations Committee. According to the bill’s author, this bill “will encourage community business partners to continue contracting with LEAs in order to provide work training opportunities for high school students.”
SB 643 – School Safety: Safe-to-Tell Program
Upon appropriation by the Legislature, this bill would require LEAs to establish an anonymous reporting system to report any dangerous, violent, or unlawful activity that is being conducted or threatened to be conducted on the school property or an activity sponsored by the LEA, on or before the 2024-2025 school year. The Anonymous Reporting System’s information is to be prominently posted on the school sites internet website, among other requirements.
Status: The bill was passed in the Senate and is currently in the Assembly Committee process and has been referred to the Senate Education Committee.
AB 734 – Youth Tackle Football
This bill would prohibit, on and after January 1, 2026, a youth sports organization that conducts a tackle football program or league from allowing children younger than 12 years old to participate.
Status: The bill was held in committee hearing in the Assembly, as such the bill will not be signed into law this legislative session.
AB 1467 – Nevaeh Youth Sports Safety Act
This bill would require a youth sports organization that elects to offer an athletic program to ensure the athletes have access to an AED during any official practice or match, starting on January 1, 2027. If the AED is administered, the bill requires that the AED be administered by a medical professional, coach, or other person designated by the youth sports organization, who holds an AED certification and complies with federal and state law qualifications. A youth sports organization is defined as an organization, business, nonprofit entity or a local governmental agency that sponsors or conducts amateur sports competition trainings, camps, or clubs which persons 17 years of age or younger participate.
Status: This bill was signed into law by the Governor on June 29, 2023. (Alanis, Chapter 24, Statutes of 2023)
AB 1653 – Interscholastic Athletic Programs: Emergency Action Plans: Heat Illness: Guidelines
Current law establishes that if a school district or charter school elects to offer any interscholastic athletic program, the governing entity of the school district or charter school is to ensure that there is a written emergency action plan in place that describes the location and procedures to be followed in the event of sudden cardiac arrest or other medical emergencies related to the athletics program’s activities or events. This bill would require the emergency action plan to also include the location and procedures to follow in the event of heat illness. The California Interscholastic Federation, in consultation with the State Department of Education, is to develop guidelines, procedures, and safety standards for the prevention and management of exertional heat illness no later than July 1, 2024.
Status: This bill was passed in the Assembly and is now currently in the Senate Committee process and placed on the Senate Appropriations Suspense file.
AB 5 – The Safe and Supportive Schools Act
This bill requires the California Department of Education (CDE) to complete the development of an online training curriculum and online delivery platform by July 1, 2024 and require LEAs to provide and require at least one hour of training annually to all certificated staff, commencing with the 2025-2026 school year through the 2029-2030 school year, regarding cultural competency in supporting lesbian, gay, bisexual, transgender, queer, and questioning (LGBTQ+) students.
Status: The bill was passed in the Assembly and is currently in the Senate Appropriations Committee.
AB 245 – High School Athletics: California High School Coaching Education and Training Program
Current law states the intent of the Legislature to establish a California High School Coaching Education and Training Program to be administered by school districts with an emphasis on specific components, including cardiopulmonary resuscitation and first aid training. Whereas every high school coach is to complete, at their own expense, a coaching education program that meets the guidelines established by the California High School Coaching Education and Training Program. This bill revises the program’s requirements for training in cardiopulmonary resuscitation and first aid, and further requires training in recognizing and responding to signs and symptoms of cardiac arrest. It would also add certifications for use the of an AED to the training component.
Status: This bill has been ordered for a third reading in the Senate, within minimal amendments. This bill will most likely pass.
SB 509 – School Employee and Pupil Training: Youth Mental and Behavioral Health: Mental Health
Subject to an appropriation, this bill requires each LEA, special school, and charter school to ensure all students in grades 1 to 12 receive age-appropriate mental health education from instructors trained in appropriate courses at least once in elementary school, middle school, and high school. The bill further requires that LEAs, charter schools, and state special schools to certify to the California Department of Education that 75% of its classified staff and 75% of its certificated employees who have direct contact with students receive youth behavioral training.
Status: This bill was re-referred to the Assembly Appropriations Committee for a hearing.
Keenan is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.
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