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