December 16, 2020New COVID-19 Workplace Exposure Notice and Reporting Requirements Become Effective January 1, 2021
In response to the COVID-19 pandemic and the need to maintain a safe workplace, AB 685 requires employers to provide specific notices to employees and others related to COVID-19 exposures in the workplace. It also provides the California Division of Occupational Safety and Health (“Cal/OSHA”) with expanded authority to enforce such requirements and ensure safe workplace operations. AB 685 is effective January 1, 2021.
New Employer Notice and Reporting Requirements for COVID-19 Exposures in the Workplace
A. Notice to Employees and Exclusive Representatives of Potential COVID-19 Exposures at Same Worksite
AB 685 requires employers to provide notices to employees at a worksite and their exclusive representatives (for represented employees) related to potential COVID-19 exposures in the workplace within one business day of being informed of a potential exposure by, a (1) “qualifying individual” at (2) the same “worksite,” within (3) the “infectious period”. These three terms help determine if such notices are required and are defined as follows:
- A “qualifying individual” means a person who can establish any of the following requirements:
- A laboratory-confirmed case of COVID-19;
- A positive COVID-19 diagnosis from a licensed health care provider;
- A COVID-19 related isolation order issued by a public health official; or
- Death due to COVID-19, as determined by the County public health department.
- “Worksite” is defined to include the building, store, facility, agricultural field, or other location where a qualified individual worked during the infectious period. However, it does not apply to buildings, floors, or other locations of the employer that the qualified individual did not enter.
- The “infectious period” for an individual who develops symptoms for COVID-19 begins two days before they first develop symptoms and ends when the following criteria are met:
- 10 days have passed since symptoms first appeared, AND
- At least 24 hours have passed with no fever (without use of fever-reducing medications), AND
- Other symptoms have improved.
- For an individual who tests positive for COVID19 but never develops symptoms, the “infectious period” begins two days before the specimen for their first positive COVID-19 test was collected and ends 10 days after the specimen for their first positive COVID-19 test was collected.
Once the potential COVID-19 exposure is identified under the guidelines above, an employer is obligated to send out the following notices:
- Notice to Employees at Same Worksite
The employer must provide a written notice to all employees, and to the employers of subcontracted employees, who were present at the same worksite within the infectious period stating that they may have been exposed to COVID-19. The notice must include information regarding any COVID-19-related benefits or leave rights under federal, state, and local laws, or pursuant to employer policy, as well as the employee’s protections against retaliation and discrimination. Finally, the notice must include the employer’s plans for implementing and completing a disinfection and safety plan pursuant to guidelines issued by the federal Centers for Disease Control. The notice must be sent in a manner the employer normally uses to communicate employment-related information. This can include personal service, email, or text message so long as it can be reasonably anticipated that employees will receive the notice within the one business day requirement. The notice must be in both English and the language understood by the majority of employees.
- Notice to Exclusive Representative of Represented Employees
If the affected employees who are required to receive this COVID-19 exposure notice include represented employees, the employer must send the same notice to the exclusive representative of the affected bargaining unit. Failure to comply with these requirements may subject the employer to a civil penalty. AB 685 also prohibits employers from requiring employees to disclose medical information except as required by law, and prohibits employers from retaliating against an employee for disclosing a qualifying case of COVID-19. Employers are also required to maintain records of these potential exposure notices for at least three years.
B. Notice to Local Public Health Agency of “Outbreak” at Worksite
Where an employer has three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households this constitutes a COVID-19 “outbreak”. Once an employer is on notice of an “outbreak”, it must notify the applicable local public health agency within 48 hours of the names, number, occupation, and worksite of any “qualifying individuals” related to the “outbreak”.
AB 685 also requires the California Department of Public Health (CDPH) to make workplace statistics received from local health departments under this provision – other than personally identifiable employee information – available on its website, such that members of the public can track the number of cases and outbreaks by industry.
C. Exceptions to Notice and Reporting Requirements
These new COVID-19 notice and reporting requirements apply to all private and public employees, with two exceptions:
- Health facilities, as defined in Section 1250 of the Health and Safety Code, are exempt from reporting an “outbreak” within 48 hours as described above.
- The notice requirements do not apply to exposures by employees whose regular duties include COVID-19 testing or screening or who provide patient care to individuals who are known or suspected to have COVID-19, unless the “qualifying individual” is also an employee at the same worksite.
Expanded Cal/OSHA Authority to Address COVID-19 Issues
A. Cal/OSHA Will Be Authorized to Shut Down A Workplace, Operation, or Process that Creates an Imminent Hazard Due To COVID-19 Exposure Risk
AB 685 expands and clarifies Cal/OSHA’s authority to prohibit entry to a workplace or to the performance of an operation/process within a workplace if Cal/OSHA finds that it exposes employees to a risk of COVID-19 infection and thereby creates an imminent hazard to employees. If Cal/OSHA uses its authority to apply such a workplace restriction, it must then provide the employer with notice of the action and post that notice in a conspicuous place at the worksite. In addition, Cal/OSHA may not impose restrictions that would materially interrupt “critical government functions” essential to ensuring public health and safety functions, or the delivery of electrical power or water.
This expanded authority sunsets on January 1, 2023, and will be repealed automatically on that date unless extended further by the Legislature.
B. Amends Cal/OSHA Procedures for Serious Violation Citations Relating to COVID-19
Through January 1, 2023, Cal/OSHA, Cal/OSHA is not obligated to provide an alleged violation to an employer in advance for COVID-19 serious violation citations issued and can instead issue the citation immediately. The employer would still be able to contest the citation through the existing Cal/OSHA appeal procedures.
Impact of AB 685 on Employers
Employers should review and revise their existing procedures related to notification of COVID-19 exposures in the workplace in order to ensure they are ready to comply with the new notice and reporting requirements imposed by AB 685 once it becomes effective.
Boutin Jones attorneys are available to assist in employers to ensure compliance with AB 685, to provide legal advice on the impacts of this new law, and to answer any other questions you may have regarding this Employment Law Alert. Please contact an attorney in our Employment Law Group by phone at (916) 321-4444 or via email:
Gage C. Dungy gdungy@boutinjones.com
Julia L. Jenness jjenness@boutinjones.com
Kimberly A. Lucia klucia@boutinjones.com
James D. McNairy jmcnairy@boutinjones.com
Bruce M. Timm btimm@boutinjones.com
Errol C. Dauis edauis@boutinjones.com
Andrew M. Ducart aducart@boutinjones.com
Kendall C. Fisher-Wu kfisher-wu@boutinjones.com
Lissa Oshei loshei@boutinjones.com
