REQUIREMENTS FOR EMPLOYERS REGARDING NOTIFICATION OF COVID-19

On Sept. 17, 2020, assembly Bill (AB) 685 was signed into law. AB 685 establishes new requirements for California employers to notify employees about a potential COVID-19 exposure in the workplace. The law also adds new requirements for employers to report a COVID-19 workplace “outbreak” to local health authorities and makes it easier for the Division of Occupational Safety and Health (“Cal/OSHA”) to issue a citation for a serious violation related to COVID-19. These requirements go into effect on January 1, 2021, and are set to expire on January 1, 2023.

Specifically, AB 685 requires:I. Requirements for Notifying Employees of Potential COVID-19 Exposure under AB 685The previous OSHA “guidelines” for notification of employees who may have been exposed to a covid-19 infected employee is now mandatory. All California employers, under new Labor Code section 6409.6, must, within one business day:

Notify Potentially Infected Employees:

Provide a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same “worksite” as the “qualifying individual” within the “infectious period” and may have been exposed to COVID-19. To ensure compliance with employee privacy, the notice to employees should be provided in a manner that does not reveal the identity of the qualifying individual.

Infectious Period:

Section 6409.6(d)(2) defines “infectious period” as “the time a COVID-19-positive individual is infectious, as defined by the California Department of Public Health.” This currently appears to be defined as 10 days from exposure, though it is not entirely clear in CDPH guidelines and the definition is designed to change with with the Department of Public Health guidelines.

Notice of Potential Exposure:

Section 6409(d)(3) defines “notice of potential exposure” as including notice to the employer from:

a public health official/licensed medical provider that an employee was exposed to the qualifying individual at the worksite, or;
from an employee/employee’s emergency contact that the employee is qualifying individual;
notice through the employer’s testing protocol that an employee is a qualifying individual; or
notice from a subcontracted employer that a qualifying individual was on the worksite.

Qualifying Individual:

Section 6409.6(d)(4) defines a “qualifying individual” as a person who: (1) has a laboratory-confirmed positive case or a diagnosis from a licensed health care provider, (2) received an isolation order from a public health official, or (3) died due to COVID-19. Because an individual may receive a local isolation order based on potential exposure and not a confirmed case, the inclusion of such individuals may subject employers to providing notice more frequently.

Worksite:

Section 6409.6(d)(5) defines “worksite” as “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” The term “worksite” “does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter.” Further, “[i]n a multiworksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.” Although this definition may limit the number of notice recipients for some employers, an employer with hundreds of employees in a large warehouse or store may have to notify more employees than an employer which occupies multiple floors in a building.

Notify the Union for Potentially Infected Employees:

Provide a written notice to the exclusive representative (union), if any, of the employees in item 1 above.

Contents of Union Notice: notice to the union representative must contain the same information required in an incident report in a Cal/OSHA Form 300 log .

Notify Potentially Infected Employees and Their Union of COVID-19 Related Benefits:

Provide all employees who may have been exposed with information regarding COVID-19-related benefits that the employee(s) may be entitled to receive, including workers’ compensation benefits, COVID-19 related leave, company sick leave, paid sick leave, supplemental paid sick leave, as well as the company’s anti-retaliation and anti-discrimination policies.

Notify All Employees and Their Union of the Employer’s COVID-19 Safety Plan:

Notify all employees, the employers of subcontracted employees, of the company’s COVID-19 protocols and safety plan that the company plans to implement and complete to prevent further exposures, (must follow CDC guidelines).
This requirement does not apply to employees who, as part of their job duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID-19.
Employers must maintain records of the written notice for at least three years, which must be reasonably secured to prevent unauthorized access and disclosure.II.Requirements for Reporting an Outbreak to Local Health Authorities

California Employers must notify the local public health department within 48 hours of notice of a COVID-19 “outbreak”. An “outbreak” is “three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period.”

The notice must identify the number of qualifying individuals, the name, occupation, and worksite for those individuals, the employer’s business address, and the NAICS code of the worksite. Following the reporting of an outbreak, the employer must continue to give notice to the local health department of any subsequent laboratory-confirmed cases at the worksite. This section does not apply to a “health facility,” as defined in Health and Safety Code section 1250.

Since the Labor Code requires employers to specifically provide the name of the affected individuals to public health authorities employers may disclose this information under these circumstances without an employee’s authorization.

III.

Changes to Cal/OSHA Enforcement

The California Division of Occupational Safety and Health, better known as Cal/OSHA, has had the authority to shut down a worksite or prohibit the operation of certain equipment that presents an “imminent hazard.” They Define an imminent hazard as a “hazard which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the hazard can be eliminated through regular Cal/OSHA enforcement procedures.”

AB 685 amended this language and Cal/OSHA can now prohibit operations when, in the opinion of Cal/OSHA, a worksite or operation “exposes workers to the risk of infection” of COVID-19 so as to constitute an imminent hazard. There is no specific level or type of exposure to COVID-19 that must be met in order to create an “imminent hazard” and that determination determined by Cal/OSHA itself.