Section 3208.3 Of Chapter 1. General Provisions From California Labor Code >> Division 4. >> Part 1. >> Chapter 1.
3208.3
. (a) A psychiatric injury shall be compensable if it is a
mental disorder which causes disability or need for medical
treatment, and it is diagnosed pursuant to procedures promulgated
under paragraph (4) of subdivision (j) of Section 139.2 or, until
these procedures are promulgated, it is diagnosed using the
terminology and criteria of the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders, Third
Edition-Revised, or the terminology and diagnostic criteria of other
psychiatric diagnostic manuals generally approved and accepted
nationally by practitioners in the field of psychiatric medicine.
(b) (1) In order to establish that a psychiatric injury is
compensable, an employee shall demonstrate by a preponderance of the
evidence that actual events of employment were predominant as to all
causes combined of the psychiatric injury.
(2) Notwithstanding paragraph (1), in the case of employees whose
injuries resulted from being a victim of a violent act or from direct
exposure to a significant violent act, the employee shall be
required to demonstrate by a preponderance of the evidence that
actual events of employment were a substantial cause of the injury.
(3) For the purposes of this section, "substantial cause" means at
least 35 to 40 percent of the causation from all sources combined.
(c) It is the intent of the Legislature in enacting this section
to establish a new and higher threshold of compensability for
psychiatric injury under this division.
(d) Notwithstanding any other provision of this division, no
compensation shall be paid pursuant to this division for a
psychiatric injury related to a claim against an employer unless the
employee has been employed by that employer for at least six months.
The six months of employment need not be continuous. This subdivision
shall not apply if the psychiatric injury is caused by a sudden and
extraordinary employment condition. Nothing in this subdivision shall
be construed to authorize an employee, or his or her dependents, to
bring an action at law or equity for damages against the employer for
a psychiatric injury, where those rights would not exist pursuant to
the exclusive remedy doctrine set forth in Section 3602 in the
absence of the amendment of this section by the act adding this
subdivision.
(e) Where the claim for compensation is filed after notice of
termination of employment or layoff, including voluntary layoff, and
the claim is for an injury occurring prior to the time of notice of
termination or layoff, no compensation shall be paid unless the
employee demonstrates by a preponderance of the evidence that actual
events of employment were predominant as to all causes combined of
the psychiatric injury and one or more of the following conditions
exist:
(1) Sudden and extraordinary events of employment were the cause
of the injury.
(2) The employer has notice of the psychiatric injury under
Chapter 2 (commencing with Section 5400) prior to the notice of
termination or layoff.
(3) The employee's medical records existing prior to notice of
termination or layoff contain evidence of treatment of the
psychiatric injury.
(4) Upon a finding of sexual or racial harassment by any trier of
fact, whether contractual, administrative, regulatory, or judicial.
(5) Evidence that the date of injury, as specified in Section 5411
or 5412, is subsequent to the date of the notice of termination or
layoff, but prior to the effective date of the termination or layoff.
(f) For purposes of this section, an employee provided notice
pursuant to Sections 44948.5, 44949, 44951, 44955, 44955.6, 72411,
87740, and 87743 of the Education Code shall be considered to have
been provided a notice of termination or layoff only upon a district'
s final decision not to reemploy that person.
(g) A notice of termination or layoff that is not followed within
60 days by that termination or layoff shall not be subject to the
provisions of this subdivision, and this subdivision shall not apply
until receipt of a later notice of termination or layoff. The
issuance of frequent notices of termination or layoff to an employee
shall be considered a bad faith personnel action and shall make this
subdivision inapplicable to the employee.
(h) 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.
The burden of proof shall rest with the party asserting the issue.
(i) When a psychiatric injury claim is filed against an employer,
and an application for adjudication of claim is filed by an employer
or employee, the division shall provide the employer with information
concerning psychiatric injury prevention programs.
(j) An employee who is an inmate, as defined in subdivision (e) of
Section 3351, or his or her family on behalf of an inmate, shall not
be entitled to compensation for a psychiatric injury except as
provided in subdivision (d) of Section 3370.