As many employees return to the workplace in the midst of the ongoing and persistent coronavirus pandemic, California Governor Gavin Newsom signed Assembly Bill 685 into law on September 17, 2020, requiring employers of California employees to provide notice to employees of potential exposure to COVID-19 and to local public health departments of COVID-19 outbreaks. The law goes into effect January 1, 2021.
When is notice required?
|When an employer is notified by 1) a public health official or licensed medical provider; 2) the employee or their emergency contact; 3) the testing protocol of the employer; or 4) a subcontracted employer that an employee or subcontracted employee is a “qualifying individual.”
A “qualifying individual” is someone who:
- Has a laboratory-confirmed case of COVID-19;
- Has a positive COVID-19 diagnosis from a licensed health care provider;
- Has a COVID-19 related order to isolate from a public health official; or
- Has died from COVID-19.
|Who must receive notice?
||Written notice must be provided to employees (and their exclusive representative, if any) and the employers of any subcontracted employees.
Additionally, if the number of cases meets the definition of a COVID-19 “outbreak” as defined by the State Department of Public Health (three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period), the employer must provide notice to the local public health agency.
|When must notice be given?
||Employers are required to give notice to employees within one business day.
Employers are required to give notice to the local public health agency within 48 hours of an outbreak.
|What must the notice contain?
||The contents of the notice requirement vary and dependent upon the circumstances of the employee:
When notifying local public health agencies of an outbreak, notice must include the names, number, occupation, and worksite of employees who are qualifying individuals and the business address and NAICS code of the involved worksite. Employers must also continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
- Employees who were on the premises at the same worksite as the qualifying individual within the infectious period must be notified that they may have been exposed to COVID-19.
- Employees who may have been exposed to COVID-19 must be provided with information regarding COVID-19-related benefits to which they may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as antiretaliation and antidiscrimination protections of the employee.
- All employees must be notified of the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.
|How must notice be given?
||Employees must be given notice in a manner the employer normally uses to communicate employment-related information, including but not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
|Are there any exemptions?
||Health facilities, as defined in Section 1250 of the Health and Safety Code, are not required to notify the local public health agency under AB 685. The AB 685 notification requirements also do not apply to employees who, as part of their 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, are persons under investigation, or are in quarantine or isolation related to COVID-19, unless the qualifying individual is an employee at the same worksite.
|What are the penalties/consequences for failure to comply?
||Employers who violate the notification requirements are subject to civil penalties and citations from Cal/OSHA.
Additionally, Cal/OSHA can shut down operations where a worksite exposes employees to COVID-19 so as to constitute an imminent hazard. However, this provision will be repealed on January 1, 2023.
Finally, the State Department of Public Health is required to make workplace industry information received from local public health departments publicly available on its internet website in a manner that allows the public to track the number and frequency of COVID-19 outbreaks and the number of COVID-19 cases and outbreaks by industry reported by any workplace.
In addressing the rebuttable presumption of a “serious violation” under the California Occupational Safety and Health Act if there a realistic possibility that death or serious harm could result from a workplace hazard, AB 685 provides a list of actions employers should take which could later help to establish the absence of a serious violation: procedures for communicating the employers’ health and safety rules and programs to employees; training for employees and supervisors to prevent employee exposure; procedures for discovering, controlling access to, and correcting the hazard; and supervision of employees exposed or potentially exposed.
Employers have already implemented health and safety protocols in response to COVID-19 in accordance with state and agency guidelines and should continue to take ongoing actions to prevent COVID-19 cases in the workplace. However, based on what is known about the ease with which COVID-19 spreads, employers will be unable to completely eliminate exposure. Consequently, California employers should begin taking steps now to plan and prepare for compliance with the notice requirements of AB 685.