By Ilana R. Morady and Elizabeth M. Levy
Seyfarth Synopsis: As California’s legislative session comes to an end, a wave of new COVID-19 related laws that impact employers are being signed into law. On September 17, 2020, Governor Newsom signed AB 685, which will require employers to provide specific notices to employees exposed to COVID-19 within one business day of becoming aware of the exposure, and impacts COVID-19 related alleged Cal/OSHA violations.
When we last we blogged about Assembly Bill 685, it was awaiting Governor Newsom’s approval, but it was signed into law on September 17, 2020. Under the new law, which will be in effect from January 1, 2021, until January 1, 2023, employers must comply with specific notification requirements any time there has been a potential COVID-19 exposure in the workplace. AB 685 also enhances Cal/OSHA’s enforcement abilities in the COVID-19 realm.
COVID-19 Exposure Notification Requirements
- Who Do I Need To Notify?
Any time an employer is put on notice that a “qualifying individual” (someone who tested positive for or was diagnosed with COVID-19, or is subjected to an isolation order) was in the workplace while they were considered potentially infectious, the employer is subject to notice requirements. First, notice must be provided to individuals who “may have been exposed” in the workplace within one business day. This notice must be sent to employees, subcontractors, and union representatives.
Employers with multiple buildings or floors do not necessarily need to provide notice of potential exposure throughout the entire company— the notice requirement is limited to the specific “worksite” the qualifying individual entered, such as “Building A” or “Field 1,” and not necessarily the entire company or facility site.
Employers are also required to notify the local public health department within 48 hours of becoming aware of a COVID-19 workplace “outbreak,” as defined by the California Department of Public Health. (Note that the California Department of Public Health currently defines an outbreak as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households. However, as with all things COVID-19 related, local definitions may vary and guidance may be subject to change, so employers should continue to regularly check on the most up to date applicable information.)
When notifying the local health department, employers should be prepared to report the number of COVID-19 cases at the worksite, as well as names, occupations and worksites of qualifying individuals. Employers required to report an outbreak must also notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
- What Information Does The Notification Need To Include?
The notice must inform individuals who were at the workplace during the qualifying individual’s infectious period that they “may have been exposed to COVID-19.” This notice also needs to provide information to all employees “who may have been exposed” about benefits to which employees may be entitled under federal, state, or local law, including workers’ compensation, paid sick leave, negotiated leave, and anti-retaliation and anti-discrimination protections.
In addition, all employees must be notified about the disinfection and safety plans that the employer plans to implement and complete per CDC guidelines.
- How Do I Need To Distribute The Notice?
The written notification of potential exposure must be sent in a manner normally used by the employer to communicate employment-related information (including personal service, email, or text), must be in both English and the language understood by the majority of the employees, and must protect employee privacy (i.e., not disclose the names of qualifying individuals). Non-employee individuals entitled to this notice may be notified in a similar manner.
Also note employers are required to maintain records of the written notification for at least three years.
- Are There Any Exceptions?
The “outbreak” reporting requirement will not apply to “health facilities” as defined in the Health and Safety Code. In addition, neither the “outbreak” reporting nor the notification-of potential-exposure requirement will apply to employees who, as part of their duties, conduct COVID-19 testing or provide direct care to individuals known to have tested positive for COVID-19, or are in quarantine or isolation—unless the qualifying individual is an employee at the same worksite.
Cal/OSHA has long had the authority to shut down a worksite if it determines the worksite presents an “imminent hazard.” However, AB 685 adds Section 6325(b) to the Labor Code, which reiterates that the Division of Occupational Safety and Health can close down a business if it deems there is an “imminent hazard” related to potential COVID-19 transmission.
AB 685 also exempts the Division from sending notices of intent to issue serious citations (as is normally required) when the alleged hazard is COVID-19 related. Normally, if Cal/OSHA plans to issue a serious citation, it first sends a notice of intent, and employers have the option of responding with evidence. But now, if Cal/OSHA intends to issue a serious citation for an alleged COVID-19 hazard, it need not issue a notice of intent or consider the employer’s evidence.
Navigating ever-changing COVID-19 related laws remains a significant challenge, particularly in California. Seyfarth continues to keep employers updated in its COVID-19 Resource Center. If you have questions or concerns regarding which types of regulations may apply to your workforce, and how to implement them, reach out to your favorite Seyfarth attorney.
Edited by Coby Turner