Notice and Reporting Obligations for Workplace Exposure to COVID-19
AB 685: Labor Code §§ 6325, 6432 (amended, repealed, and added); id. § 6409.6 (added and repealed)
As of January 1, 2021, employers must comply with certain notification and reporting requirements relating to potential COVID-19 exposure.
Two different events may trigger different notice requirements: when there is (1) a “notice of potential exposure” in the worksite; or (2) a “COVID-19 outbreak.”
Notice of Potential Exposure
What is it?
- A “notice of potential exposure” occurs when: (1) a public health official or licensed medical provider notifies the employer that an employee was exposed to a “qualifying individual” at the worksite; (2) an employee or their emergency contact notifies the employer that the employee is a “qualifying individual”; (3) the employer’s testing protocol reveals that an employee is a qualifying individual; or (4) a subcontracted employer notifies the employer that a qualifying individual was on the worksite of the employer receiving notification.
- A “qualifying individual” includes any person who has (1) a lab-confirmed case of COVID-19; (2) a positive COVID-19 diagnosis from a licensed health care provider (3) a COVID-19-related order to isolate provided by a public health official; or (4) died due to COVID-19 as determined by the county public health department.
Who must receive notice? When an employer receives “notice of a potential exposure,” the employer must provide notice to: (1) all employees, and the employees’ representatives (e.g., union representatives), who were on the premises at the same “worksite” as the qualifying individual within the “infectious period”; and (2) the employers of subcontracted employees who were on the premises at the same “worksite” as the qualifying individual within the “infectious period.”
“Worksite” is defined as: “[t]he building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter. In a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.”
“Infectious period” is defined by the State Department of Public Health and the current definition is: (1) for symptomatic persons, two days before symptom onset and 10 days after onset have passed with no fever, without use of fever reducing medications and symptoms have improved; and (2) for persons who test positive but never develop symptoms, two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.
What must the notice say? The notice must:
- Alert employees, the exclusive representatives of the employees (if any), and the employers of subcontracted employees, that the employees may have been exposed to COVID-19 at the worksite;
- Provide employees and their exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee 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 anti-retaliation and anti-discrimination protections for the employee; and
- Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, regarding the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.
When and how must the employers provide notice? Notice must be provided within one business day of an employer learning of the potential exposure. It must be in writing and sent by (among other possible ways) 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.
What is it? The statute provides that the definition of a “COVID-19 outbreak” is provided by the California Department of Public Health. While the Department’s current definition does not seem to align with the language of the new law, it appears that a “COVID-19 outbreak” is three or more cases of COVID-19 in the workplace within a two-week period among employees who live in different households.
If the employer is notified of a number of cases that meets the California Department of Public Health’s current definition of a COVID-19 outbreak (currently, three cases in 14 days), the employer must notify its local public health department within 48 hours and provide information on the number of COVID-19 cases, as well as the names, occupation, and worksite of any qualifying individuals. The State Department of Public Health must publish information it receives from local public health departments on their website.
Who must receive notice? When an employer is notified of a COVID-19 outbreak, the employer must provide notice to the local public health agency in the worksite’s jurisdiction.
What must the notice say? The notice must include: (1) name, number, occupation, and worksite of employees who meet the definition of a qualifying individual; and (2) the business address and NAICS code of the worksite where the qualifying individuals work.
When and how must the employers provide notice?
Notice must be provided within 48 hours of becoming aware of the potential outbreak and the statute does not indicate any particular method or means for sending the notice.
Until January 1, 2023, Cal/OSHA is authorized to shut down operations, processes, and prevent entry into workplaces when, “in its opinion,” employees are exposed to conditions that constitute an imminent hazard due to a risk of exposure to COVID-19. If Cal/OSHA exercises this authority, it must provide the employer with notice and post the notice in a conspicuous place at the worksite. Any restrictions imposed by Cal/OSHA must be limited to the immediate area where the hazard was identified. Cal/OSHA may not materially interrupt “critical government functions” essential to ensuring public health and safety functions, or the delivery of electrical power or water.
Also until January 1, 2023, Cal/OSHA may issue streamlined citations for serious violations related to COVID-19, without the need to comply with certain pre-citation requirements such as notifying the employer of an alleged violation at least 15 days before issuing a citation.
Employer Pro Tips
- Employers should coordinate their AB 685 compliance efforts with their obligations under Cal/OSHA’s recently issued Emergency Temporary Standards (“ETS”) on COVID-19 infection prevention. Under these standards, employers are required to establish and implement a written COVID-19 prevention program. The plan must address several issues, including a system for communication with employees; identification and evaluation of COVID-19 hazards; investigating and responding to COVID-19 cases in the workplace; correction of COVID-19 hazards; training and instruction; physical distancing; face coverings; other engineering controls, administrative controls, and personal protective equipment; reporting, recordkeeping, and access; and return to work criteria. A more detailed description of these requirements is set forth here. The Department of Industrial Relations’ website offers a model plan that employers may use in crafting their own written plans.
- The new law applies to all public and private employers in California, regardless of the number of employees.
- Though the new law allows for a streamlined citation process, employers are still entitled to appeal a Cal/OSHA citation.
- Employers should be sure to keep records of written COVID-19-related notifications for at least three years.
- Because COVID-19 outbreaks may prompt attention from the media, employers should consider developing a media strategy.
- Employers should ensure their employee contact information is accurate and up to date, particularly for workforces that do not use work-issued emails or phones.
- Though the definition of “worksite” is ambiguous, it suggests that, for multi-level buildings, employers need only provide notice to employees (or their representatives or subcontract employers) if they were present on the same floor of a building where the qualifying individual entered. Accordingly, employers may want to consider proactively limiting an employee’s access to areas outside of their usual workspace.
COVID-19 Workers’ Compensation Presumption and New Employer Reporting Requirement
SB 1159: Labor Code § 77.8 (added); id. §§ 3212.86, 3212.87, 3212.88 (added and repealed).
For employers who employ 5+ employees, an employee who tests positive for COVID-19 is entitled to a presumption that illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023 arose in the course of their employment. This presumption only applies if the employee tests positive for COVID-19 within 14 days of working at their place of employment and their positive test occurs during a period of an “outbreak” at their place of work. An “outbreak” exists when, within 14 days: (1) there have been four positive COVID-19 tests for workplaces with 100 or fewer employees; (2) 4% of the employee population tests positive at workplaces with over 100 employees; or (3) the workplace is ordered to close by a specified entity due to a risk of COVID-19 infection.
Employers may dispute the presumption with evidence such as measures in place to reduce COVID-19 transmission in the employee’s place of employment and the employee’s nonoccupational risks of COVID-19 infection.
When an employer with 5+ employees knows or reasonably should know that an employee has tested positive for COVID-19, they must report certain information to their claims administrator in writing via electronic mail or fax within three business days. For example, employers must report that an employee has tested positive, the date of the positive test, location the employee worked during the preceding 14 days, and the highest number of employees who worked at the same site as the infected employee in the 45-day period preceding the last day the employee worked at each location.
Check out our recent blog post for more details about these new reporting requirements.
Employer Pro Tips
- Employers should continue to work quickly and diligently to investigate and track each positive COVID-19 test from employees.
- Employers should implement and document measures to reduce COVID-19 transmission at their worksites so they are prepared to quickly and effectively dispute workers’ compensation claims.
- An employee’s home or residence is excluded from the reporting requirement, meaning unless an employee performed labor or services at the employee’s place of employment in the 14 days before he or she tests positive, the employer is not required to report this to the claims administrator.
- The new law sunsets on January 1, 2023, so if an employee suffers illness or death from COVID-19 after January 1, 2023, the presumption no longer applies.
- Employers should be aware that they have just three business days to report to their claims administrator that they know or reasonably should know that an employee has tested positive for COVID-19. This reporting obligation applies regardless of whether the employer plans to dispute whether the employee contracted COVID-19 in the workplace.
- Employers should act quickly to rebut the presumption and, for workers’ compensation injuries occurring on or after July 6, 2020, the employer has just 45 days from the date of the claim to gather and submit evidence to deny that the claim or injury is presumed compensable.
- Compliance is critical. Employers who fail to report the required information, or who intentionally submit false or misleading information, are subject to a $10,000 penalty from the California Labor Commissioner.