This blog was authored by Alysha Stein-Manes.
On October 1, 2017, several peace officers from the Orange County Sheriff’s Department were in attendance at the 91 Harvest Music Festival when a gunman opened fire on the crowd. Fifty-eight people were killed and over 800 injured. Several of these peace officers brought other festivalgoers to safety and continued to provide assistance to the local police immediately following the shooting. Reports further indicate that peace officers from other California agencies were also present at the Festival and provided assistance.
Following the Las Vegas shooting, several Orange County peace officers filed workers’ compensation claims for injuries arising from their off-duty conduct, but their claims were denied because the California Labor Code did not extend workers’ compensation protections for such out-of-state conduct.
In response to the deputies’ experiences, an assembly member introduced Assembly Bill (AB) 1749 to amend the California Labor Code governing workers’ compensation benefits. Following unanimous support from both Legislative houses, then-Governor Jerry Brown signed AB 1749 into law in the Fall of 2018. The law specifically amends the Labor Code to permit public agencies to accept liability for workers’ compensation of a peace officer, if the peace officer “is injured, dies, or is disabled from performing his or her duties as a peace officer by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace,” whether peace officers engage in such conduct in-state or out-of-state. A public agency may accept such liability if the agency determines that providing workers’ compensation serves the agency’s public purpose. Importantly, the law extends the timeline for peace officers who were injured in the Las Vegas shooting to file workers’ compensation claims by statutorily setting their “date of injury” as January 1, 2019. By setting their date of injury as January 1, 2019, these peace officers may take advantage of the statute’s one-year statute of limitations.
The new law also clarifies that an agency’s acceptance of workers’ compensation liability does not affect any determination of whether a peace officer acted within the course and scope of their employment for any other purpose. This additional language may be intended to protect agencies from liability for alleged legal violations arising from a peace officer’s off-duty conduct.
AB 1749 does not create a mandate that a public employer accept workers’ compensation liability under the circumstances described above. Rather, the law expressly states that an employer may accept liability “at its discretion or in accordance with written policies adopted by resolution of the employer’s governing body.”
Agencies should consider if and how they wish to implement this new law. On the one hand, adoption of a written policy can protect an agency against accusations that decisions to accept or deny liability are made for arbitrary, discriminatory, retaliatory or other improper reasons. Written policies are generally a best practice. On the other hand, the ability of an agency to make ad hoc non-discriminatory and non-retaliatory decisions regarding accepting such liability provides agencies with flexibility where it may be difficult to define what triggers coverage under this new law. We recommend that agencies consult with their legal counsel to consider their options and discuss the drafting of a policy that will best serve a particular agency’s needs.
While this new law applies only to peace officers, the Legislature is currently considering a bill, AB 932, which would extend similar protections to California’s firefighters when the firefighter engages in fire-suppression or rescue operation or the protection or preservation of life or property outside of California. We will continue to monitor AB 932 as it makes its way through the legislative process and provide updates.