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==DEFENSES TO PSYCHOLOGICAL CLAIMS==

As discussed in the prior chapter, many actions taken by an employer in response to the coronavirus will be considered "actual events of employment" for the purposes of § 3208.3(b)(1). However, not every action taken by an employer will result in liability for a psychiatric injury.

Personnel actions which are lawful, nondiscriminatory, good faith may not be used to support a psychiatric claim. Additionally, employees who have been employed for less than six-months will have a difficult time asserting their psychiatric injuries are compensable. We explore these defenses in this chapter. 

===GOOD FAITH PERSONNEL ACTION DEFENSE===

Section 3208.3(h) states, "No compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful, nondiscriminatory, good faith personnel action." It establishes what is commonly called the good faith personnel action defense.

The Court of Appeal has explained, "[T]he Legislature's 'good faith personnel action' exemption is meant to furnish an employer a degree of freedom in making its regular and routine personnel decisions (such as discipline, work evaluation, transfer, demotion, layoff, or termination). If a regular and routine personnel decision is made and carried out with subjective good faith and the employer's conduct meets the objective reasonableness standard, section 3208.3's exemption applies."<ref>''City of Oakland v. Workers' Comp. Appeals Bd.'' (2002) 99 Cal.App.4th 261, 267.</ref>

====Analysis for Good Faith Personnel Action====

In ''Rolda v. Pitney Bowes, Inc.,''<ref>(2001) 66 Cal.Comp.Cases 241.</ref> the appeals board en banc established the required analysis when the good faith personnel action defense pursuant to § 3208.3(h) is asserted:

<ol>
<li>The WCJ must determine whether the alleged psychiatric injury involves actual events of employment, and if so, whether competent medical evidence establishes the required percentage of industrial causation.</li>
<li>If these first two conditions are met, the WCJ must then decide whether any of the actual employment events were personnel actions.</li>
<li>If so, the WCJ must next determine whether the personnel action or actions were lawful, nondiscriminatory and made in good faith.</li>
<li>If all these criteria are met, competent medical evidence is necessary as to causation; that is, the personnel action or actions must be a substantial cause, accounting for at least 35 to 40 percent, of the psychiatric injury.</li>
</ol>

This analysis has been approved by the Court of Appeal.<ref>''San Francisco Unified School Dist. v. Workers' Comp. Appeals Bd.'' (2010) 190 Cal.App.4th 1, 9.</ref> Thus, while judges must determine legal issues regarding whether an employee's psychiatric injury was caused by actual events of employment, whether the events were personnel actions, and whether the personnel actions were lawful, nondiscriminatory and in good faith, causation of the psychiatric injury is a medical issue. A doctor must break down the causes of a psychiatric injury, both industrial and nonindustrial, into percentages.

====Personnel Action Defined====

As discussed in the prior chapter, an actual event of employer pursuant to § 3208.3(b)(1) does not need to be an action taken by the employer. However, a personnel action has been defined by the courts as "conduct either by or attributable to management including such things as done by one who has the authority to review, criticize, demote, or discipline an employee."<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 835; ''Stockman v. Department of Corrections'' (1998) 63 Cal.Comp.Cases 1042, 1045; ''County of Sacramento v. Workers' Comp. Appeals Bd. (Brooks)'' (2013) 215 Cal.App.4th 785, 790.</ref> Therefore, in order to satisfy § 3208.3(h), the action must be undertaken by a supervisor or someone else in a position of authority. Moreover, although a personnel action must be the action of a person in a position of authority, not every action by those people qualify as personnel actions.

The courts have explained, "An employer's disciplinary actions short of termination may be considered personnel actions even if they are harsh and if the actions were not so clearly out of proportion to the employee's deficiencies so that no reasonable manager could have imposed such discipline."<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 833; ''Stockman v. Department of Corrections'' (1998) 63 Cal.Comp.Cases 1042, 1045; ''County of Sacramento v. Workers' Comp. Appeals Bd. (Brooks)'' (2013) 215 Cal.App.4th 785, 790.</ref> "It is unnecessary, moreover, that a personnel action have a direct or immediate effect on the employment status. Criticism or action authorized by management may be the initial step or a preliminary form of discipline intended to correct unacceptable, inappropriate conduct of an employee. The initial action may serve as the basis for subsequent or progressive discipline, and ultimately termination of the employment, if the inappropriate conduct is not corrected.”<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 834-835; ''County of Sacramento v. Workers' Comp. Appeals Bd. (Brooks)'' (2013) 215 Cal.App.4th 785, 790.</ref>

Although the courts have explained that what constitutes a personnel action depends on the subject matter and factual setting for each case, they have provided examples of personnel actions. Specifically, "Personnel actions may include but are not necessarily limited to transfers, demotions, layoffs, performance evaluations, and disciplinary actions such as warnings, suspensions, and terminations of employment."<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 835; ''Stockman v. Department of Corrections'' (1998) 63 Cal.Comp.Cases 1042, 1045.</ref> 

On the other hand, the appeals board has held that changes in an employee's working conditions do not to constitute personnel actions. Therefore, it has held that increased workloads <ref>See ''Joe v. County of Santa Clara-Probation Department'' (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 352; ''Humphrey v. City of San Luis Obispo'' (2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 467.</ref> or changes in job duties<ref>See ''Vayser v. Tarzana Treatment Centers'' (2016) 2016 Cal. Wrk. Comp. P.D. LEXIS 508; ''Garcia v. County of Riverside'' (2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 447.</ref> are not personnel actions. Similarly, the implementation of a new computer system was not consider a personnel action, because it merely changed how the employees were required to complete their duties.<ref>''Alde v. Children's Hospital and Health of San Diego'' (2014) 2014 Cal. Wrk. Comp. P.D. LEXIS 87.</ref> Although these actions did not qualify as "personnel actions" pursuant to § 3208.3(h), and thus could not be used to defend a claim, they were considered "actual events of employment" for the purposes of § 3208.3(b)(1), and thus could be used to support a claim.

Therefore, to the extent an employee's psychiatric injury was caused by a termination, layoff, transfer, or reassignment related the COVID-19 crisis, these would likely be considered personnel actions. Shift changes related to the coronavirus would also likely be considered a personnel action.<ref>See ''County of Sacramento v. Workers' Comp. Appeals Bd. (Brooks)'' (2013) 215 Cal.App.4th 785.</ref>

However, any stress related caused by changed working conditions related to COVID-19 would not be considered personnel actions. Stress related to changes in job duties, new computer systems, or requirements to maintain physical distance are not likely barred by § 3208.3(h). It is also unlikely that requiring an employee to work from home would qualify as a personnel action since this only changes where and how a job is performed. 

Ultimately, it will be up a physician to determine whether an employee has psychiatric injury, and if so, break down the different causes of the injury, whether industrial or nonindustrial. If the industrial causes predominate, then the courts will need to determine whether any of the industrial causes were personnel actions, and if so, whether they were a substantial cause of the injury.

====Personnel Action Must Be Lawful, Nondiscriminatory, and in Good Faith====

Because of the difficult economic times caused by the coronavirus, employers have been forced to make tough personnel decisions. Some employers have laid off some or all their workforce. Others have been required to transfer and consolidate their workforce. Even though these actions would be considered personnel actions, § 3208.3(h) requires an employer to prove the personnel actions were lawful, nondiscriminatory and in good faith.

The Court of Appeal has explained, "If a regular and routine personnel decision is made and carried out with subjective good faith and the employer's conduct meets the objective reasonableness standard, section 3208.3's exemption applies."<ref>''City of Oakland v. Workers' Comp. Appeals Bd. (2002) 99 Cal.App.4th 261, 267.</ref> It further explained that "[a]ny analysis of the good faith issue ... must look at the totality of the circumstances, not a rigid standard, in determining whether the action was taken in good faith. To be in good faith, the personnel action must be done in a manner that is lacking outrageous conduct, is honest and with a sincere purpose, is without an intent to mislead, deceive, or defraud, and is without collusion or unlawful design."<ref>''City of Oakland v. Workers' Comp. Appeals Bd. (2002) 99 Cal.App.4th 261, 267.</ref>

The appeals board has defined "discrimination" as "[a] failure to treat all persons equally where no distinction can be found between those favored and those not favored." It adds that "the real issue is whether the employer treated applicant differently than others similarly situated without justification..<ref>''Larch v. Contra Costa County'' (1998) 63 Cal.Comp.Cases 831, 838.</ref>

In deciding which employees to layoff, employers must be careful not to discriminate against an employee. For example, it would not be permissible to layoff only disabled employees while keeping only able-bodied workers. Auch employee could potentially file stress claims in relation to the layoff which would not be barred by § 3208.3(h) if the actions were deemed to be unlawful and discriminatory. Additionally, such employees could argue that they were discriminated against in violation of Labor Code § 132a as well as state and federal anti-discrimination law.

===SIX-MONTH RULE FOR PSYCHIATRIC INJURIES===

Generally, in order to bring a claim for a psychiatric injury, pursuant to § 3208.3(d), the employee must have been "employed by that employer for at least six months." Section 3208.3(d) makes an exception, however, when the "psychiatric injury is caused by a sudden and extraordinary employment condition." The courts have been clear that § 3208.3(d) applies to "''all'' claims for psychiatric injury."<ref>''Wal-Mart Stores v. Workers’ Comp. Appeals Bd.'' (2003) 112 Cal.App.4th 1435, 1441.</ref> The question then becomes whether an employee, who worked less than six months but contracts COVID-19 on an industrial basis, is barred from receiving benefits for a psychiatric injury resulting from the exposure. 

A "sudden and extraordinary employment condition" has been described as "the type of event[] that would naturally be expected to cause psychic disturbances even in a diligent and honest employee.<ref>''Wal-Mart Stores v. Workers’ Comp. Appeals Bd.'' (2003) 112 Cal.App.4th 1435, 1441, fn. 10.</ref> In one case, the Court of Appeal noted that "sudden" was defined as "happening without previous notice or with very brief notice : coming or occurring unexpectedly : not foreseen or prepared for." It also defined "extraordinary" as  "going beyond what is usual, regular, common, or customary”; and “having little or no precedent and usu[ally] totally unexpected.”<ref>''Matea v. Workers' Comp. Appeals Bd.'' (2006) 144 Cal.App.4th 1435, 1448.</ref> However, the court then proceed to broadly state that if "the event or occurrence that caused the alleged psychiatric injury was something other than a regular and routine employment event or condition, that is, that the event was uncommon, unusual, and occurred unexpectedly, the injury may be compensable even if the employee was employed for less than six months.<ref>''Matea v. Workers' Comp. Appeals Bd.'' (2006) 144 Cal.App.4th 1435, 1449.</ref>

In another case, the Court of Appeal held that the nature of an injury is not considered in determining whether the psychiatric condition is caused by a “sudden and extraordinary employment condition.”<ref>''Travelers Casualty & Surety Co. v. Workers' Comp. Appeals Bd. (Dreher)'' (2016) 246 Cal.App.4th 1101, 1108.</ref> Thus, in order to qualify as an sudden and extraordinary employment condition, the work condition, not the resulting medical condition, must be uncommon, unusual or totally unexpected.

For example, in one case, an applicant contracted a bacterial infection while working at an animal theme park, which ultimately manifested as Guillain-Barre Syndrome, which was described as a rare condition. The appeals board found nothing unusual, uncommon, or unexpected about his employment activities that caused the injury.<ref>''Aresco v. Workers' Comp. Appeals Bd.'' (2014) 79 Cal.Comp.Cases 1188 (writ denied).</ref>

The COVID-19 outbreak is certainly "extraordinary," but it would be difficult to classify it as "sudden." Therefore, it is unlikely that contracting COVID-19 alone would constitute a sudden and extraordinary employment condition. Although it is possible to imagine an a scenario where this exception could be met (e.g., contracting COVID-19 after being attacked by someone who has the disease), it would be the underlying employment event, not the COVID-19 diagnosis, that would support the exception. Thus, it is likely that most employees who contract COVID-19 at work during the first six months of employment would be able to pursue a claim for psychiatric injury.

Nevertheless, even if a psychiatric injury is barred by § 3208.3(d), an employee could still receive psychiatric treatment. This is because of the general rule that an employer is required to treat a nonindustrial condition if it is necessary to cure or relieve an employee from the effects of an industrial injury.<ref>''Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton)'' (1983) 34 Cal.3d 159.</ref> So, even if an employee has worked for less than six, he or she could potentially receive treatment for a psychiatric injury flowing from a COVID-19 diagnosis.<ref>See e.g., ''Danks v. Warner Bros. Studio Facilities'' (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 216.</ref>


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