©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 391 “employee” any person who provides services using an application-based referral platform. As such, these workers are not employees within the meaning of California law and the Workers’ Compensation Appeals Board thus lacks jurisdiction over injuries suffered in the course of performing their duties. As to other workers, it depends if the hiring entity is within an occupation or business covered by AB 5 or the successor law AB 2257. Entities so covered must meet the ABC test to avoid workers’ compensation coverage for the workers in question, while entities not so covered must meet the Borello test to avoid workers’ compensation coverage for the workers in question (see § 19.7). 17.9 Discrimination Against Injured Workers—Labor Code § 132a Section 132a makes it unlawful to discharge, to threaten to discharge, or to discriminate “in any manner” against a California worker who has made known any intent to file for workers’ compensation benefits or who has received a workers’ compensation rating, award, or settlement. This prohibition extends to protect workers who were injured in jobs for a prior employer. Section 132a has been interpreted liberally, so that even a uniformly administered rule regarding termination of employment (e.g., a rule that anyone on disability leave for more than a year will be dismissed) can be unlawful, unless the employer shows that its discharge of the injured worker was based on “business necessity.”10 A violation is a misdemeanor. Civil remedies include reinstatement, back pay, and an increase by one-half in the employee’s workers’ compensation benefits, or $10,000, whichever is less. While civil remedies are available under section 132a, a violation of this statute does not give rise to a common law wrongful termination claim, since the statute contains limitations in scope and remedy.11 The logical sweep of section 132a, as interpreted, arguably might reach even the continuation of medical benefits for an injured worker on leave. But the WCAB has held that an employer may discontinue medical benefits for employees on leave because of work-related injury, provided that the discontinuation was pursuant to an ERISA benefit plan.12 Moreover, the California Supreme Court has held that, beyond the termination context, the antidiscrimination rule of section 132a simply requires that workers with industrial injuries be treated no worse than their co-workers who have sustained no workplace injury.13 17.10 Covid-19 Under 2020 legislation, there was until 2023 a rebuttable presumption of workers’ compensation compensability for Covid-19 infections. For employers of five or more, the presumption arose that any employee testing positive for Covid-19 had contracted the disease in the workplace, if certain circumstances were met. The law required employer reporting to workers’ compensation insurers or claims administrators and imposed stiff fines for non-compliance.14 Those presumptions expired January 1, 2024, but employees are still able to establish the compensability of Covid-19 claims under standard rules for compensability for diseases. In 2023, the California Supreme Court reviewed a case brought by an employee’s spouse for a Covid-19 injury and found that while the spouse’s claims were not barred by the Workers’ Compensation Act’s exclusivity provision, policy considerations cautioned against imposing a tort duty to the members of an employee’s household.15 1 Lab. Code § 3700 (employer may secure coverage by buying insurance coverage or securing state certificate of consent to self-insure). 2 Lab. Code §§ 3751. See also supra § 7.7.1. 3 See Lab. Code § 3600.5(b)(c); McKinley v Arizona Cardinals, 78 Cal. Comp. Cases 23 (2013); Federal Ins. Co. v WCAB (Johnson), 221 Cal. App. 4th 1116, 78 Cal. Comp. Cases 1257 (2013). 4 See generally § 3.4 (interactive process required for worker with job-related injury), § 6.3 (broad definition of “disability”).
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