PASADENA, CA—On March 4, California Governor Gavin Newsom declared a state of emergency due to the coronavirus (Covid-19) cases reaching California via the Grand Princess Cruise Ship. A little over a week later, President Donald Trump declared a national state of emergency due to the virus.
California 6th District Assemblyman Kevin Kiley took the opportunity to issue a challenge to Governor Newsom:
I commend @GavinNewsom’s strong actions to mitigate #COVID19. He should now use his powers under the Emergency Services Act to suspend enforcement of any law that makes it more difficult for people to work remotely or for healthcare workers to provide care. This includes #AB5. pic.twitter.com/rAoYV1TWMW
— Kevin Kiley (@KevinKileyCA) March 12, 2020
Asm. Kiley’s letter to the Governor is encouraging him to use his powers under the Emergency Services Act to suspend enforcement of any law that makes it more difficult for people to work remotely or for healthcare workers to provide care.
Now CA has declared a state of emergency because of coronavirus—it’s a good time to remember that *RESPIRATORY THERAPISTS* are among the *many* health professions NOT exempted from the destructive, idiotic #AB5 bill
“The impact for patients could be huge”https://t.co/nsf4pWEvqm
— skepticalifornia (@skepticaliblog) March 5, 2020
What is the California Emergency Services Act?
It is a law that authorizes the Governor to declare a state of emergency, and authorizes the Governor, upon declaration of a state of emergency, to exercise broad powers, including, among others, the ability to suspend certain statutes or regulations. (Commentary: New freelance law AB5 illustrates what’s wrong with the Democratic super-majority in Sacramento)
So, if the Governor signed an executive order to ensure state funding for schools during this emergency, it would simply take another small flick of his pen to suspend AB5 and its ravages.
California AB5 anti-gigging law will harm Americans suffering from COVID-19
Since its enforcement in January, this law has destroyed the livelihood of thousands of independent contractors in the State of California. Among those impacted are nurses, nurse practitioners, physical and respiratory therapists—the very people needed on the frontline to battle COVID-19.
The law only exempts certain medical personnel like doctors, surgeons, dentists, veterinarians, and psychologists. The frontline professionals who are most essential in the fight against the coronavirus are not even allowed to work.
Cara (not her real name), is a Nurse Practitioner, specializing in Rural Health.
She lives in the Coachella Valley, a high desert area near Palm Springs. Before AB5, Cara had her own company where she contracted herself out to multiple different doctor’s offices.
“I was able to help out for vacation, fill-in days, cover holes in shifts. There are rural areas where it is difficult to find full-time help,” she said. “It was something I would do one or two days a week to give consistent coverage for the clinics.”
Since AB5 was implemented as law, many rural clinics have had to shut down. In order to stay afloat and meet the needs of the community, these clinics were staffed with independent health personnel as contractors. For a small clinic or outpatient facility, the cost involved to fulfill the requirement of converting contractors to employees effectively put them out of business.
“Nurse Practitioners are considered health professionals,” she said. “We are educated, we have the same education that doctors and lawyers do. We should have the right to choose how and when we can work. There really should not be a difference between the doctors and the mid-level providers, so the fact that we got left off of this [law’s exemption] is discriminating.”
Because there are limited resources, and fewer skilled medical personnel in rural areas, Cara would travel an hour to two hours away to fill the need. Now, because of AB5, she has been getting less work.
“Some doctors don’t want to do it (because of the potential for fines and audits by the Employment Development Department which enforces AB5), others are willing to be hit with a fine to keep their offices open. It’s the small, private practices that are being affected. The big hospitals could not care less—they have the money to hire employees.”
AB5 was signed into law on September 18, 2019
The AB5 law resulted in the closure of outpatient clinics and healthcare centers in the Coachella Valley and surrounding areas. The most prominent closure in the area has been the Health to Hope Clinics, which offered free and low-cost health services to the homeless. (Health to Hope Clinics suddenly ceases operations; may aim for partnership)
According to a report in the Desert Sun, Health to Hope Clinics was
“…one of the largest providers of health care for those experiencing homelessness in the Coachella Valley. Local officials say the closure of the primary care clinic will have a ripple effect in the community, reducing access to affordable health care for a vulnerable population.”
The shortsightedness and failure of lawmakers to address this consequence is staggering. There seems to be a lack of responsibility on the part of lawmakers who closed residential mental health facilities resulting in the epidemic of the homeless population in California. (Did the Emptying of Mental Hospitals Contribute to Homelessness?)
The California Future Health Workforce Commission released recommendations in February of 2019 on reducing the State’s health workforce shortage of 41,000 primary care physicians, nurse practitioners, and physician assistants by 2030.
The report states, “it’s critical the state train and retain enough professionals to provide the care people need.”
So why would a state that has a healthcare worker shortage, effectively neuter the workforce that it already had because of AB5’s draconian ABC Test?
According to the AB5 law, in order to be considered an independent contractor, you have to fulfill all three parts outlined. They are:
(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
(B) The person performs work that is outside the usual course of the hiring entity’s business.
(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
“The “B” part of the test is the most difficult part to pass; they’ve made it almost impossible. Your choices are either W-2, at half the pay and you lose all your deductions, or you have to own your own business, which is also impossible.”
With the state of emergency brought on by the Covid-19 pandemic, the need to have well-trained and effective healthcare workers has become even more critical.
On March 13, Dr. Cameron Kaiser, the county’s public health officer announced four more cases of Covid-19 in the Coachella Valley, bringing the number of residents being treated for coronavirus to 10. One of the infected persons lived at a 99-bed skilled nursing facility. The elderly are particularly vulnerable to the ravages of this virus, so extreme measures are being taken to ensure everyone in the facility is tested to mitigate the community spread.
“It’s going to be hard,” Cara said. “In the past, I have contracted myself to the ER if they needed extra hands, or a pop-up clinic, that is something you typically do in a crisis like this. If your frontline healthcare workers are being quarantined [due to coronavirus exposure], you’re at a shortage.
“In this pandemic, if the hospital staff gets quarantined you would rely on contractors to help out; with this law it would be illegal. California is at a shortage of healthcare workers anyway, so that’s not what you need. It takes months for medical personnel to be onboarded into the California health system.”
And then there is the issue of homelessness which is the open sore on California’s visage even before the spread of coronavirus. According to the Coachella Valley Rescue Mission website, over a thousand people are homeless in the Coachella Valley, while 65 percent of all individuals in Eastern Coachella Valley live in poverty. Of that number, the fastest-growing segment of the Coachella Valley homeless are families with children.
How does one contain, test, and mitigate this virus when it spreads among the homeless community? And how do you employ healthcare professionals into the situation when the ones skilled and equipped to do the work are being cut off from the contractor community because of AB5?
“If COVID-19 starts to spread there, you’re going to see deaths on the street. It’s kind of harsh verbiage, but not unrealistic,” Cara said. “The folks in rural areas don’t have access, knowledge, or financial means. They don’t have someone up there giving them the resources, telling them to wash their hands.
“Without us having the ability to contract in or fill in the gaps, it’s going to be atrocious.”
Lead Image: Photo by Milan Rout from Pexels