Cal/OSHA Guidance Applicable to Employers Subject to the ATD
As monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in...
California Gov. Gavin Newsom has ended the COVID-19 state of emergency in California. While it was in effect, however, the workers' compensation system was subject to numerous changes and disruptions. The Workers' Compensation Appeals Board (WCAB) moved toward remote hearings, and Gov. Newsom issued an executive order extending specified time limits established in the Labor Code and administrative regulations.
One of the limits not extended, either by executive order, emergency regulation or court order, was the time limit for an injured employee to use the supplemental job displacement benefit (SJDB) voucher. Pursuant to Labor Code § 4658.7(g), "The voucher shall expire two years after the date the voucher is furnished to the employee, or five years after the date of injury, whichever is later. The employee shall not be entitled to payment or reimbursement of any expenses that have not been incurred and submitted with appropriate documentation to the employer prior to the expiration date."
But in Lona v. Disneyland Resort, 2023 Cal. Wrk. Comp. P.D. LEXIS 55, the WCAB held that an applicant should be afforded additional time beyond the two-year limit in LC 4658.7(f) to use her supplemental job displacement benefit (SJDB voucher) because the governor's COVID-19 pandemic stay-at-home Executive Order N-33-20 lasted from March 18, 2020 to June 15, 2021. In that case, an applicant sustained injuries March 6, 2013, and May 17, 2014, and was provided with two vouchers. The vouchers issued March 18, 2019, and were noticed to expire March 18, 2021. On March 19, 2020, approximately one year before the applicant's SJDB vouchers expired, Gov. Newsom issued Executive Order N-33-20, which ordered residents to stay at home in order to curb the spread of COVID-19. That order was not lifted until June 11, 2021. The applicant used one of her vouchers and argued that that the time limit LC 4658.7(f) should be extended. The defendant disagreed, and argued that the limit was not extended by the governor's executive order.
The WCAB held that the time limit to use the voucher in this applicant's case should be extended. It explained that the unforeseen global pandemic and resulting stay-at-home order fundamentally altered life beginning March 2020, including many office closures and the implementation of remote work. The board explained that a statute may be exempt from compliance due to legal impossibility, and believed that the COVID-19 global pandemic created such impossibility for the applicant. It noted that she was 72 years old in 2020 and had underlying health conditions, placing her in the high-risk category for contracting COVID-19. It found that the applicant's limited time to use the voucher was diminished by pandemic closures.
The applicant claimed that she wanted to use the voucher for computer training. The WCJ expressed concerns that there was no evidence to support that computer training was not available. The WCAB, however, found that the applicant's testimony established that she did not have the necessary skills to apply for jobs online, and required training to do so. It explained that it could not reasonably expect the applicant to maneuver through the digital world when she was seeking training for precisely that ability to apply for jobs. The WCAB concluded that fairness dictated that the voucher's expiration be tolled for 15 months –– the duration of the stay-at-home order. The applicant was given an additional 15 months from the service of the WCAB's decision to use the voucher.
This decision should not be interpreted as an extension of time to use the voucher for all injured workers. The WCAB relied on facts specific to the applicant that rendered her use of the voucher during the stay-at-home period a legal impossibility. Specifically to support its finding, the board relied on her age, that she was at high risk for contracting COVID-19, and was unable to participate in remote learning. Another injured worker who had the capacity to participate in remote learning might not be given the same extension of time. Injured workers seeking additional time to use the voucher must be prepared to show why it was a legal impossibility for them to use the voucher during the stay-at-home order.
Notably, when the governor’s stay-at-home order began, the applicant had only approximately one year to use the voucher. The WCAB extended that time by 15 months, the duration of the stay-at-home order. That appears to be an intentional decision by the WCAB to award that applicant additional time due to the disruptions caused by the COVID-19 pandemic.
For further discussion on the SJDB voucher and the time limits for its use, see Sullivan on Comp Section 11.4 Supplemental Job Displacement Benefit –– Injury on or After Jan. 1, 2013..
The WCIRB California's 2023 State of the System Report revealed that shares of self-insurance vary widely by industry and are relatively low in most cases.