Ab 203: How Global Climate Change and Valley Fever Impact Workers' Compensation

• Jurisdiction: California,United States
• Citation: Vol. 32 No. 4
• Publication year: 2019
• Author: Shannon M. Blair
• topic: Construction Law,Environmental Law,Labor Law,Health Law,Workers Compensation

AB 203: How Global Climate Change and Valley Fever Impact Workers' Compensation

Shannon M. Blair, Esq. | Elizabeth A. Epstein, Esq. | Theodore A. Penny, Esq. Los Angeles, California

According to a recent University of California Irvine study, scientists predict that with increasing temperatures and shifting precipitation patterns associated with climate change, the incidence of human coccidioidomycosis (valley fever) will double in the areas where the disease is present and will impact previously untouched communities throughout the West.¹ In addition to these environmental factors, the California Department of Public Health (CDPH) identifies population growth in areas where the fungus is common, along with construction and dust-generating activities, as contributing to the rise of valley fever in California.² The CDPH reports that Californians experienced record numbers of reported, suspected, probable, and confirmed annual cases of valley fever, with 6,084 cases in 2016, 8,181 cases in 2017, and 8,298 cases in 2018.³

In November 2015 the Centers for Disease Control and Prevention published a study of workers who contracted valley fever while building solar power farms in California during the years 2011 through 2014.⁴ The researchers found that

reported cases of coccidioidomycosis and hospitalizations in California increased dramatically, peaking in 2011, particularly in the Coccidioides-endemic counties of the southern San Joaquin Valley.⁵

As noted above, that incidence rate has continued to accelerate. The researchers concluded that

unless awareness is emphasized and effective prevention measures are implemented, additional construction in Coccidioides-endemic areas, including solar power facility construction, will probably expose workers to Coccidioides, thus leading to additional infections. Awareness and prevention of coccidioidomycosis among all personnel at these and other similar construction sites should be included among the priorities for employee safety.⁶

This conclusion was in keeping with the CDPH's recommendations for preventing and reporting valley fever among workers.

The conclusions and recommendations just described are served by California's recently passed Assembly Bill 203. In this article we examine how the legislation, and the responsibilities it places on the construction industry in California, will affect workers' compensation claims, particularly serious and willful claims, and planning, as exposure to the fungus increases with population growth and infrastructure development. Included in this discussion is a background review of the relevant standards for civil and workers' compensation cases.

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Passage of AB 203

On October 10, 2019, Governor Newsom signed into law AB 203, which requires employers with employees working at construction sites where valley fever is highly endemic to annually provide awareness and prevention training to their employees by May 1 of each year, starting in 2020, and before beginning work that is reasonably anticipated to cause exposure to substantial dust disturbance. The bill, which adds Labor Code section 6709 to the California Labor Code, broadly applies

to an employer whenever employment exists in connection with the construction, alteration, painting, repairing, construction maintenance, renovation, removal, or wrecking of any fixed structure or its parts.

The required training includes exposure prevention, such as water-based dust suppression, wet-cleaning dusty equipment when feasible, and wearing a respirator when exposure to dust cannot be avoided. Id. The bill defines endemic to include areas where the annual incidence rate of valley fever is greater than 20 cases per 100,000 persons per year. Id. An employer subject to Labor Code section 6709 must include at least the following topics in their training and prevention program:

• What valley fever is and how it is contracted
• How to identify high risk areas and the types of work and environmental conditions in which the risk of contracting valley fever is highest
• How to identify personal risk factors that may create increased risk for some employees
• Personal and environmental exposure prevention methods
• The importance of early detection, diagnosis, and treatment to prevent the disease from progressing
• How to identify the...