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.
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:
Once the potential COVID-19 exposure is identified under the guidelines above, an employer is obligated to send out the following notices:
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:
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.
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:
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