AB 654 is a new law that took effect on October 5, 2021 and modified California employer’s duty to notify workers of a potential COVID-19 exposure at the workplace. The new law modifies and updates AB 685 which became effective on January 1, 2021 (see our post discussing AB 685 here). The new law is a reminder for employers that while business begin to reopen and employees return to work, employers must remain diligent in regard to these ongoing COVID-19 regulations in California. Here are five key aspects of AB 654 employers need to review:
1. Employers must notify employees (1) who had a potential exposure and (2) employees who had close contact within one business day.
Employers are required to provide 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” that they may have been exposed to COVID-19.
AB 654 adds a new requirement that employers are also required to provide a written notice to any employees who had “close contact” with the qualifying individuals. “Close contact” is defined at “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high-risk exposure period….”
The new law defines “high-risk exposure period” as either of the following periods: “(A) For persons who develop COVID-19 symptoms, from 2 days before they first develop symptoms until 10 days after the symptoms first appeared, and until 24 hours have passed with no fever, without the use of fever-reducing medications and symptoms have improved. (B) For persons who test positive who never develop COVID-19 symptoms, from 2 days before until 10 days after the specimen for their first positive test for COVID-19 was collected.”
“Qualifying individual” is defined as any person who has any of the following (1) 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.
“Infectious period” in the statue refers to the definition as set by the State Department of Public Health. Prior guidance of the State Department of Public Heath stated the infectious period “includes, at a minimum, the 48 hours before the individual developed symptoms.” (See https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Workplace-Outbreak-Employer-Guidance.aspx)
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.
2. Employers must provide information about COVID-19-related benefits to certain employees.
Employer must also provide information to all employees who were on the premises at the same worksite as the qualifying individual within the infectious period with information regarding COVID-19-related benefits available under federal, state, and local laws. This information would include workers compensation benefits, options for exposed employees, including COVID-19-related leave, company sick lease, state-mandated leave, supplemental sick leave, or negotiated leave provisions. This notice must also set forth antiretaliation and antidiscrimination protections for the employee.
3. Notice to employees must also include the cleaning and disinfection plan of the employer.
The new law clarifies that the obligation of employers notify employees of cleaning and disinfection plan only applies to employees who were on the premises at the same worksite as the qualifying individual within the infectious period, and employers of subcontractor employees. The prior law required this notification for all employees, regardless if they were on site, or potentially exposed. The cleaning and disinfection plan must meet the guidelines of the federal Center for Disease Control and Prevention and the COVID-19 prevention program per the Cal-OSHA COVID-19 Emergency Temporary Standards.
4. AB 654 changes the deadline to notify the local public health agency of outbreaks.
If an employer has an “outbreak” in its workforce, within 48 hours or one business day, whichever is later, the employer 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 654 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). Under the prior law, AB 685, employers only had 48 hours to report outbreaks to the local public health agency.
5. AB 654 clarifies the definition of “worksite.”
The new law clarifies that a “worksite” does not mean a worker’s personal residence or alternative work location chosen by the worker when working remotely. As previously provided under the old law, AB 685, the new law in AB 654 continued to adopt the standard that at a multiworksite location, the employer only needs to notify employees who were at the same worksite as the qualified individual.
My firm is hosting a webinar on Wednesday, November 17, 2021 from 10 to 11 a.m. PT discussing this and other new laws facing California employers in 2022. Registration for the webinar is here.