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 COVID-19 or is subjected to an isolation order) was in the workplace while they were considered potentially infectious, written notice must be provided to individuals who “may have been exposed” in the workplace, including employees, subcontractors, and union representatives. This notice must be provided within one business day of when the employer is put on notice.
Employers with multiple buildings or floors do not necessarily need to provide notice 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 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 State Department of Public Health). This notification requirement encompasses the number of COVID-19 cases at the worksite, as well as names, occupations and worksites of qualifying individuals. (The definition of “qualifying individuals” and the definition of an “outbreak” are currently inconsistent between the CDPH and the new Labor Code). 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.
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, definitions and guidance may be subject to change, so employers should continue to regularly check on the most up to date information.)
- 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.”
The 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.
Individuals entitled to the notice must also 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 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 infected individuals). Non-employee covered individuals may be notified in a similar manner.
Also note employers are required to maintain records of the written notification for at least three years.
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