Employer Notification of Covid Infections in the Workplace
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.
- Notify Potentially Infected Employees:
- Infectious Period:
- Notice of Potential Exposure:
- 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:
- Notify the Union for Potentially Infected Employees:
- Notify Potentially Infected Employees and Their Union of COVID-19 Related Benefits:
- Notify All Employees and Their Union of the Employer’s COVID-19 Safety Plan:
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.
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.
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