BILL ANALYSIS                                                                                                                                                                                                    Ó






                 Senate Committee on Labor and Industrial Relations
                                 Ted W. Lieu, Chair

          Date of Hearing: June 22, 2011               2011-2012 Regular 
          Session                              
          Consultant: Gideon L. Baum                   Fiscal:Yes
                                                       Urgency: No
          
                                   Bill No: AB 375
                                   Author: Skinner
                          Version: As Amended May 27, 2011
          

                                       SUBJECT
          
                          Hospital employees: presumption.


                                      KEY ISSUE

          Should the Legislature create a disputable presumption of an 
          occupational if a hospital employee contracts MRSA or a 
          bloodborne infectious disease in an acute care hospital?
          

                                       PURPOSE
          
          To create a presumption, which may be disputed by evidence, that 
          a hospital employee who contracts a bloodborne illness or MRSA 
          infection did so in the course of his or her employment.


                                      ANALYSIS
          
           Existing law  establishes a workers' compensation system that 
          provides benefits to an employee who suffers from an injury or 
          illness that arises out of and in the course of employment, 
          irrespective of fault.  This system requires all employers to 
          secure payment of benefits by either securing the consent of the 
          Department of Industrial Relations to self-insure or by securing 
          insurance against liability from an insurance company duly 
          authorized by the state.

           Existing law  creates a series of disputable presumptions of an 
          occupational injury for peace and safety officers for the 
          purposes of the workers' compensation system.  These 









          presumptions include:

                 Heart disease;
                 Hernias;
                 Pneumonia;
                 Cancer;
                 Meningitis;
                 Tuberculosis;
                 Methicillin-Resistant Staphylococcus aureus (MRSA) skin 
               infections; and
                 Bloodborne infectious disease.

          The compensation awarded for these injuries must include full 
          hospital, surgical, medical treatment, disability indemnity, and 
          death benefits, as provided by workers compensation law.  These 
          presumptions tend to run for 5 to 10 years commencing on their 
          last day of employment, depending on the injury and the peace 
          officer classification involved.  (Labor Code §§3212 to 3213.2)

           Existing law  provides that the presumptions listed above are 
          disputable and may be controverted by evidence.  However, unless 
          controverted, the Workers' Compensation Appeals Board must find 
          is accordance with the presumption.  (Labor Code §§3212 to 
          3213.2)

           This bill  would create a disputable presumption of an 
          occupational injury if a hospital employee who provides direct 
          care in an acute care hospital contracts a Methicillin-Resistant 
          Staphylococcus aureus (MRSA) skin infection or a bloodborne 
          infectious disease that develops or manifests itself during a 
          period of the person's employment with the hospital. 

           This bill  would provide that the compensation awarded for a 
          hospital employee who contracts MRSA or a bloodborne infectious 
          disease must include full hospital, surgical, medical treatment, 
          disability indemnity, and death benefits, as provided by workers 
          compensation law.  

           This bill  would provide that the bloodborne infectious disease 
          presumption must be extended to a hospital employee following 
          termination of service for a period of  180 days  and that the 
          MRSA presumption be extended for a period of  90 days  , commencing 
          Hearing Date:  June 22, 2011                             AB 375  
          Consultant: Gideon L. Baum                               Page 2

          Senate Committee on Labor and Industrial Relations 
          








          with the last date actually worked.
           
           This bill  would also provide that a bloodborne infectious 
          disease developing or manifesting itself in these cases must not 
          be attributed to any disease existing prior to that development 
          or manifestation.

                                      COMMENTS

          
          1.  What is MRSA?

            Staphylococcus aureus, often referred to simply as "staph," 
            are bacteria commonly carried on the skin or in the nose of 
            healthy people. Approximately 25% to 30% of the population is 
            colonized (when bacteria are present, but not causing an 
            infection) in the nose with staph bacteria.  Staph bacteria 
            are one of the most common causes of skin infections in the 
            United States. Most of these skin infections are minor and 
            occur through direct physical contact of the staphylococci 
            with a break in the skin (cut or scrape). The staph can be 
            spread by the infected person to someone else or to an object. 
             Susceptibility to infection depends on factors such as 
            immunity and general state of health. 

            In the past, these staph infections typically have been easy 
            to treat with an inexpensive, short course, usually 
            well-tolerated antibiotics. Now, in most communities in the 
            U.S., over half of the staph causing skin infections are 
            resistant to commonly used antibiotics, and the infections 
            often return in spite of apparently successful initial 
            treatment.

            Methicillin-Resistant Staphylococcus aureus (MRSA) is 
            Staphylococcus aureus that is resistant to the penicillin.  
            Originally, MRSA was confined to hospitals and long-term care 
            facilities.  Many of these hospital-associated MRSA infections 
            caused very serious complications and were resistant to all 
            oral antibiotics. 

            More recently, a newer, more virulent strain of MRSA has 
            emerged in the community that causes boils, abscesses, and 
          Hearing Date:  June 22, 2011                             AB 375  
          Consultant: Gideon L. Baum                               Page 3

          Senate Committee on Labor and Industrial Relations 
          








            other soft tissue infections that are not linked to previous 
            antibiotic use. It is called community-associated MRSA.  It is 
            generally believed that the community-associated MRSA strains 
            did not originate from the strains of MRSA that cause 
            infections in hospitals and other healthcare facilities.  
            However, individuals seeking treatment for 
            community-associated MRSA would likely seek treatment in a 
            hospital due to the risks involved.

            Individuals at risk for MRSA include workers in a healthcare 
            setting, individuals visiting patients in a healthcare 
            setting, athletic facilities, dormitories, military barracks, 
            correctional facilities, and daycare centers.  However, MRSA 
            is now found throughout the general community.

          2.  Bloodborne Infectious Diseases in the Workforce:  

            Currently, the Department of Industrial Relations (DIR) 
            defines bloodborne pathogens and describes the best practices 
            for mitigating them in the workplace.  The regulations (Title 
            8, Section 5193) define bloodborne pathogens as "pathogenic 
            microorganisms that are present in human blood and can cause 
            disease in humans. These pathogens include, but are not 
            limited to, hepatitis B virus (HBV), hepatitis C virus (HCV) 
            and human immunodeficiency virus (HIV)."

            In a healthcare setting, contact with these pathogens can 
            occur though contact with human tissue and biological fluids, 
            including blood, semen, saliva, organ and muscle tissue, and 
            skin.  Such contact can occur in a variety of different 
            situations in a hospital setting, such as emergency care, 
            assault by a patient (eg biting a treating nurse), and routine 
            medical care involving intravenous needles.

          3.  Possible Amendments:  

            For peace and safety officers, the definition of bloodborne 
            infectious diseases are defined by statute and tied to 
            Department of Industrial Relations regulations.  Currently, 
            this bill is silent on a definition for bloodborne infectious 
            diseases.

          Hearing Date:  June 22, 2011                             AB 375  
          Consultant: Gideon L. Baum                               Page 4

          Senate Committee on Labor and Industrial Relations 
          








            Therefore, the Committee may wish to amend AB 375 to create a 
            definition for bloodborne pathogens using the same language as 
            found in existing law for peace and safety officers:

            For the purposes of this section, "blood-borne infectious 
            disease" means a disease caused by exposure to pathogenic 
            microorganisms that are present in human blood that can cause 
            disease in humans, including those pathogenic microorganisms 
            defined as blood-borne pathogens by the Department of 
            Industrial Relations.

          4.  Proponent Arguments  :
            
            Proponents of this bill believe that this bill will ensure 
            that nurses are appropriately protected from the pathogenic 
            hazards found in hospitals.  Proponents note that current law 
            provides a presumption of occupational injury to public safety 
            officers if they contract a bloodborne illness or 
            Methicillin-Resistant Staphylococcus aureus (MRSA), but nurses 
            who are exposed to both on a routine basis are not provided a 
            similar presumption.  Proponents note that while existing 
            procedures have done much to reduce MRSA exposures, it remains 
            a daily threat to the health of nurses throughout California.  
            Finally, proponents note that nurses perform a highly 
            specialized and key role in ensuring the health and welfare of 
            the people of California, and they should be able to provide 
            that service without fighting with an insurance company in the 
            event of a serious bloodborne illness or MRSA infection.

          5. Opponent Arguments  :

            The opponents argue that there is no rationale to extend the 
            concept of presumptions to employees who are not in the 
            traditional group - public safety officers - who have received 
            this special benefit due to the special dangers of the work 
            they do.  Because of the unique role that public safety 
            officers play in our society, they have historically received 
            several different and unique benefits, including enhanced 
            retirement rules, special disability retirement rules, 
            enhanced temporary disability rules, and presumptions of 
            compensability.  While these enhanced benefits may be 
            appropriate for public safety employees, it does not follow 
          Hearing Date:  June 22, 2011                             AB 375  
          Consultant: Gideon L. Baum                               Page 5

          Senate Committee on Labor and Industrial Relations 
          








            that these rules should be expanded to other classes of 
            employee.  

            Opponents argue that there is no evidence that the normal 
            rules governing how injuries or conditions are proven to be 
            job-related are not working properly with respect to the 
            employees and the conditions being addressed by the bill.  

          6.  Prior Legislation  :

            AB 1994  (Skinner) of 2010 proposed similar provisions to AB 
            375, but also included additional conditions to which the 
            presumption would apply, such as back and neck injuries.  AB 
            1994 was held on the Assembly Appropriations Committee 
            suspense file.

            AB 664 (Skinner) of 2009 was similar to AB 1994.  AB 664 was 
            held on the Assembly Appropriations Committee suspense file.


                                       SUPPORT
          
          California Nurses Association/National Nurses Organizing 
          Committee (Sponsor)
          American Federation of State, County and Municipal Employees, 
          AFL-CIO
          CA Conference Board of the Amalgamated Transit Union
          CA Conference of Machinists
          CA Official Court Reporters Association
          California Labor Federation
          California National Organization for Women
          California Professional Firefighters
          California Teamsters Public Affairs Council
          Consumer Attorneys of California
          Engineers and Scientists of California
          International Longshore and Warehouse Union
          Professional and Technical Engineers, Local 21
          San Bernardino Public Employees Association
          Union of Health Care Professionals
          UNITE HERE!
          United Food and Commercial Workers-Western States Conference
          United Nurses Association of California
          Hearing Date:  June 22, 2011                             AB 375  
          Consultant: Gideon L. Baum                               Page 6

          Senate Committee on Labor and Industrial Relations 
          








          Utility Workers Union of America, Local 132
          

                                     OPPOSITION
          Acclimation Insurance Management Services
          Allied Managed Care
          Apha Fund
          Association of California Healthcare Districts
          Association of California Insurance Companies
          California Association of Joint Powers Authorities
          California Chamber of Commerce
          California Coalition on Workers' Compensation
          California Hospital Association
          California Manufacturers & Technology Association
          California Special Districts Association
          California State Association of Counties
          County of San Bernardino
          CSAC Excess Insurance Authority
          Greater Corona Valley Chamber of Commerce
          Irvine Chamber of Commerce
          LA County Board of Supervisors
          Long Beach Area Chamber of Commerce
          Regional Council of Rural Counties


















          Hearing Date:  June 22, 2011                             AB 375  
          Consultant: Gideon L. Baum                               Page 7

          Senate Committee on Labor and Industrial Relations