January 25, 20210

A new year is now underway, and there has been a changing of the guard politically, but yesteryear’s problems still plague us, forgive the grim pun.  There is, however, something human about the cyclical yearning for hope and a thaw after a dark night of the soul.  Of course, the challenges ahead are plain.  The frustration and discontent as lockdowns and COVID now approach their first birthday remain with us.  To quote the poet, “too long a sacrifice can make a stone of the heart.”

What is clear is that the opening months of 2021 will be busy ones.  Anecdotally, we have experienced an uptick in COVID questions and claims with the passage of SB 1159.  Additionally, the reporting requirements set forth by AB 685 and the new Cal/OSHA COVID requirements have kept those workplaces that are fortunate enough to remain open busy with compliance questions and implementation.


The Division of Workers’ Compensation announced a new mileage rate for all medical treatment and medical-legal travel expenses effective 1/1/2021.  The rate, which tracks the IRS allowance for mileage costs, has decreased from $0.575 to $0.56.  The new rate is effective for all travel after 1/1/2021 regardless of the date of injury.  Updated mileage request forms can be found at the following link:  https://www.dir.ca.gov/dwc/forms-Mileage.html


With vaccines rolling out as part of the ongoing effort to control COVID, questions arise as to whether an employer who provides vaccinations to its employers may have liability for any negative effects from the vaccinations, such as an allergic reaction.  A seldom used statute, Labor Code section 3208.5 specifically applies to health care workers and defines injury to include negative reactions to any health care provided where the care is provided to prevent the development or manifestation of any bloodborne disease, illness, syndrome, or condition.

While COVID does not appear bloodborne in the way that hepatitis, which is specifically mentioned by the statute, is, the statute also mentions general illnesses, syndromes, or conditions, and so could conceivably be used to find liability if a healthcare worker is provided with a vaccine by their employer and develops negative effects.  An aggressive defense position would be that the statute only applies to bloodborne illnesses though.

Outside of that specific statute relating to healthcare workers, more generally, in the California Supreme Court case of Maher v. WCAB (1983), an employer was found liable for negative effects arising out of a tuberculosis test the employer required as a condition of employment.  The Court distinguished between situations where the vaccination or test was a general societal requirement and a specific condition set forth by the employer.

The Court noted that if the employment is a concurrent cause of the test and so the injury, the injury is industrial.  Generally, if an employer encourages or in otherwise makes a vaccination a condition of employment and the vaccination is of benefit to the employer, the employer could be liable in workers’ compensation for any ill effects from the vaccination.


Senate Bill 216, introduced by Senator Dodd on 1/13/2021, as currently proposed and drafted, would require licensed contractors in several fields, including HVAC, concrete contracting, or tree service contracting to obtain and maintain workers’ compensation insurance even if that contractor has no employees.  The bill would require all licensed contractors or applicants for licensure to obtain and maintain workers’ compensation even if that contractor has no employees as of 1/1/2025.

Currently contractors are allowed to file a certificate of exemption certifying that they have no employees and are not required to obtain or maintain workers’ compensation insurance.  Existing law requires only contractors in certain fields such as roofing to obtain and maintain coverage even where they have no employees.  According to the Contractors State License Board, there are around 229,909 active licenses as of 1/4/2021, and SB 216 was passed, per press releases from Senator Dodd, out of concern that exemptions on file may be inaccurate such that some workers are not being properly insured.


While COVID may have dampened the holiday spirit this year, our Chico office’s annual Christ-Mask Card, complete with hidden hoarded toilet paper rolls, pictured below, proved a huge hit.  We also ran a contest for our clients, asking them to correctly count the number of toilet paper rolls hidden as Easter (Christmas?) Eggs in the photo.  The winners of the contest were Cheryl McKimmy at Keenan, Mike Kula at Gallagher Bassett, and Henry Wilson at UPS.  Congratulations to the winners!


This month, you get double the value, as two new case briefs have just been published to the Mullen & Filippi website.

Sara Angelini, an Associate Attorney in our San Jose office, wrote an extremely useful overview of what is necessary for an offer of modified work to be found legally sufficient to excuse an employer from the obligation to pay temporary total disability benefits and issue a voucher.  The article discusses the effects of terminations and resignations, and all of the case law addressing what is or isn’t a bona fide return to work offer.

Mark Thorndal, an Associate Attorney in our San Francisco office, provides an extremely thorough overview of the cases addressing temporary total disability obligations and the proper rate of such payments in claims involving seasonal workers.  He discusses the Avila, Jimenez and Signature Fruit cases and notes the important distinction between the cases as they relate to the 104-week cap.  It’s an essential read for anyone who regularly employs seasonal workers.

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