On Wednesday, June 17, 2020, the California Department of Insurance approved new regulations pertaining to the California Workers' Compensation Uniform Statistical Reporting Plan - 1995 and the California Workers' Compensation Experience Rating Plan - 1995.
The most significant portion of the decision was the approval of the regulations that would exclude COVID-19 claims from a company’s experience modification rate (EMR).
The EMR is the number used by insurance companies to gauge both past cost of injuries and future chances of risk. The lower the EMR of your business, the lower your worker compensation insurance premiums will be.
This decision comes as a relief for employers, who were understandably concerned about how COVID-19 cases would impact their workers' compensation EMRs after Governor Newsom's May executive order that expanded workers' compensation benefits.
That order provides that if an employee contracts COVID-19, exposure is presumed to have arisen in the course and scope of the employee's work, therefore triggering workers' compensation benefits. While employers could conceivably overcome that presumption with sufficient evidence of non-work-related exposure, it is a difficult burden to overcome. As a result, many employers were anticipating a significant hit both to their EMRs and their workers' compensation premiums. Thankfully, the new regulations should help relieve that concern.
Companies are strongly still advised to implement a protocol based on OSHA's guidance for preparing a workplace for coronavirus. Failure to do so may be viewed as a failure to take all reasonable precautions to protect employees from coronavirus exposure, potentially triggering claims of serious and willful misconduct in the event an employee dies from COVID-19 and claims to have contracted the virus at work. The CDC also has issued helpful guidance. You should also check to make sure you are in compliance with your local county's current regulations, as these are frequently changing.
Sweeney Mason LLP continues to monitor the rapidly evolving situation pertaining to the COVID-19 virus and resulting legal issues. We are finding that the laws and orders released by the Federal, State, County and Local governments are, in some cases, ambiguous, vague and/or contradictory, resulting in some confusion among a broad cross-section of our clients. At this juncture, and given the fast-paced changes to the applicable orders and mandates, as well as the ambiguities inherent in the orders there is no “one-size-fits-all” approach to COVID-19-related legal matters. For example, several Bay Area Cities impose their own emergency orders that mirror but in many cases are more stringent than the Statewide or County orders. As a result, contracts, employment issues, ongoing lawsuits and other matters impacted by the COVID-19 outbreak should be analyzed on a case-by-case basis and with the assistance of Sweeney Mason LLP.
Sweeney Mason LLP is in daily contact with governmental offices and various trade organizations to monitor the developments surrounding the COVID-19 outbreak. While much of our personnel continues to work remotely, Sweeney Mason LLP is fully operational and will continue to assist our clients and community with their legally related issues and concerns during this uncertain time.
For more information, please contact our employment team at 408-356-3000 or via email: Roger Mason at rmason@smwb.com or Rachael Brown at reb@smwb.com.