AB 5 (Employees and Independent Contractors Bill) - was recently signed by Governor Gavin Newsom and went into effect on January 1, 2020.  AB 5 generally prohibits  independent professionals from maintaining their independence and converts them to employees for purposes of workers’ compensation and unemployment.  As a result, many independent professionals will no longer be able to maintain their independent status.     

AB 5 codified the ruling in the Dynamex case, specifying that factors of the “ABC” test should be used to determine the status of a worker as an independent contractor versus an employee. The bill exempts certain licensed health care professionals. However, Physical Therapists (PTs), Physical Therapy Assistants (PTAs), Occupational Therapists (OTs), Certified Occupational Therapy Assistants (COTAs), and Speech Therapists (STs) are not included as exempted professions.

Prior to AB 5, employers in the home health field correctly classified PTs, PTAs, OTs, COTAs, and STs as independent contractors.  Therapists, as authorized by their license and scope of practice, independently evaluate, assess, and develop treatment plans for the specific needs of their patients. They schedule appointments directly with their patients, choose their own hours, their territories, and make determinations on the management of their patients based on the results of their evaluation.  These therapists operated as independent contractors and did so by choice or to accommodate family needs or simply because they prefer the diversity.   Many of these therapists worked in the home health setting for a few hours a week, whether in the evenings or on the weekends, to supplement their full time W2 jobs. Having many therapists available to serve different areas and at different times has benefited patients by providing uninterrupted access to much-needed therapy.

Due to the restrictions of AB5, many PTs, PTAs, OTs, COTAs, and STs have left the home health field, creating an overall provider shortage in all geographic areas and has already negatively impacted access to patient care in California.

The following petition is written in an effort to exempt PTs, PTAs, OTs, COTAs, and STs from AB5 and the Dynamex Standard to allow them to work under the Borello test that has classified them for the last 30 years. Under the Borello ruling, PTs, PTAs, OTs, COTAs, and STs will continue to have control and flexibility over their own hours, territories, and the means of performing their own work as licensed, autonomous professionals.

Proposed Amendment to Section 2750.3(b)(2) of the Labor Code:

“(2) A physician and surgeon, dentist, podiatrist, psychologist, physical therapist, physical therapy assistant, occupational therapist, certified occupational therapy assistant, speech therapist, or veterinarian licensed by the State of California pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, performing professional or medical services  provided to or by an health care entity, including an entity organized as a sole proprietorship, partnership, or professional corporation as defined in Section 13401 of the Corporations Code.  Nothing in this subdivision shall apply to the employment settings currently or potentially, governed by collective bargaining agreements for the licensees identified in this paragraph.