Board votes to seek exemption from ABC independent-contractor test for occupational therapy practitioners

The California Board of Occupational Therapy voted May 20 to direct staff to seek legislation adding "occupational therapy practitioner" to Labor Code section 2783, an exemption from the state's ABC independent-contractor test. The motion was moved and seconded and carried on a roll-call vote.

Board members and association representatives said the ABC test's strict criteria have constrained organizations' ability to hire independent contractors in settings with fluctuating caseloads, such as home health, early intervention and some school-based services. "Employers are reticent to hire independent contractors because of the ABC test," a staff presenter said, describing the test's three-part standard and contrasting it with the more interpretive Borello test that would apply if an exemption is granted.

The board heard real-world examples from practitioners and the profession's association. "It provides a lot of flexibility for clinicians who do this kind of work," said Samia/Sami, an association representative, urging the exemption to widen options for families and clinicians. Board members pressed for data on how many OTs choose contractor arrangements; staff and several practitioners said comprehensive statistics were not available and that experiences were often anecdotal.

During debate, some members cautioned that an exemption would shift determinations from a strict statutory ABC test to a more interpretive standard, which could change protections for workers and consumers. "If we go into this exemption, it gives more power to employers," one member said, cautioning about potential effects on employee protections. Supporters countered that exemptions would increase service access in underserved areas. Board counsel and staff advised the board on the statutory mechanics and recommended precise drafting.

The board's motion directed staff to seek legislation enacting the amendment to Labor Code section 2783 to add occupational therapy practitioner to subsection (b). The motion passed on a recorded vote with the members present voting in favor; one member was absent. The board did not adopt implementing statutory language at the meeting but charged staff to pursue an author and the appropriate legislative vehicle.

Next steps: staff will draft bill language or seek an author and return with drafts or updates; the board asked staff to consider whether the change should be included in the sunset bill or pursued as a separate legislative initiative.