California passed sweeping legislation that imposes new reporting requirements in 2021 on employers regarding COVID-19 cases in the workplace. The new law, AB 685, also provides California’s Division of Occupational Safety and Health (Cal-OSHA) expansive authority to close workplaces based on the threat of COVID-19. Here are five issues California employers need to understand about the new requirements passed in AB 685:
1. AB 685 is effective of January 1, 2021
The Governor signed AB 685 on September 17, 2020. It becomes effective on January 1, 2021, and expires on January 1, 2023.
2. Employer notice requirements for COVID-19 in the workplace
AB 685 also adds Labor Code section 6409.6 which requires employers to report certain instances of COVID-19 in the workplace. The new law requires employers who receive a notice of potential exposure to COVID-19 to provide a written notice to other employees within one day of notice of potential exposure:
- Provide a written notice to all employees and employers of subcontracted employees who were on the premises at the same time as the “qualifying individual” within the “infectious period” that they may have been exposed to COVID-19. “Infectious period” is not formally defined by the statute, but rather refers to the definition provided by the State Department of Public Health. “Qualifying individual” is defined as any person who (1) has a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a license health care provider, (3) a COVID-19-related order to isolate provided by a public health official, or (4) died due to COVID-19, in the determination of a county public health department or “per inclusion in the COVID-19 statistics of a county.”
- The notice must be in a form that is usually used to communicate with employees, and can be by personal delivery, email, or text message as long as the notice is reasonably believed to be received by the employee within one business day of delivery. The notice must be in both English and in the language understood by a majority of employees.
- Provide employees who may have been exposed with information regarding COVID-19 related benefits available under federal, state, and local laws. This information would include workers compensation benefits, COVID-19-related leaves, company sick leave, state-mandated leave, supplemental sick leave, and antiretaliation and antidiscrimination protections.
- Notify all employees of the disinfection and safety plan that the employer plans to implement and complete in accordance with the guidelines of the Centers for Disease Control.
Employers should start preparing a draft of this notice in order to be able to meet the one-day requirement to inform employees. Employers are required under the new law to keep records of the written notices provided to employees for at least three years.
3. Employers must notify the local public health agency of “outbreaks”
If an employer has an “outbreak” in its workforce, within 48 hours it must notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation and worksite of “qualifying individuals.” An “outbreak” for AB 685 is currently defined as: “[a]t least three probable or confirmed COVID-19 cases within a 14-day period in people who are epidemiologically-linked in the setting, are from different households, and are not identified as close contacts of each other in any other case investigation.” (see https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/OutbreakDefinitionandReportingGuidance.aspx).
Again, “qualifying individual” is defined as any person who (1) has a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a license health care provider, (3) a COVID-19-related order to isolate provided by a public health official, or (4) died due to COVID-19, in the determination of a county public health department or “per inclusion in the COVID-19 statistics of a county.” The employer must also continue to inform the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
4. Grants Cal-OSHA authority to close workplaces that constitute an “imminent hazard to employees”
AB 685 amends Labor Code section 6325 to permit Cal-OSHA to close workplaces that “constitute an imminent hazard to employees” due to COVID-19. The closure of a workplace must be limited to the immediate area that the “imminent hazard exists,” and Cal-OSHA cannot prohibit entry to any areas that are outside of the hazard area. Cal-OSHA must post a notice in a conspicuous place at the place of employment making this determination. Entry must still be permitted for eliminating the dangerous condition. AB 685 removes some of the notice provisions that Cal-OSHA usually must comply with before making a determination that a work environment constitutes an imminent hazard when dealing with COVID-19, so employers must be prepared to act immediately if Cal-OSHA designates a worksite or portion of a worksite as a hazard area due to COVID-19.
5. Useful State of California issued guidance for employers for dealing with COVID-19 in the workplace
- COVID-10 Employment Playbook: Supporting a Safer Environment for Workers and Customers (September 25, 2020): https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf
- California Department of Public Health memo to all Californians regarding “Responding to COVID-19 in the Workplace for Employers” (September 18, 2020): https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Workplace-Outbreak-Employer-Guidance.aspx
- California Department of Public Health memo to Local Health Departments regarding “Non-Healthcare Congregate Facilities COVID-19 Outbreak Definitions and Reporting Guidance for Local Health Departments” (October 13, 2020): https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/OutbreakDefinitionandReportingGuidance.aspx