On September 17, 2020, Governor Newsom signed AB 685 into law. The bill imposes significant new requirements upon employers to give notice of a potential COVID-19 exposure in the workplace. It also expands Cal-OSHA’s authority and citation powers. AB 685 is effective January 1, 2021.
Any public or private employer that receives “notice of a potential exposure to COVID-19” from a “qualifying individual” at the “worksite” must take immediate steps to provide adequate notice under AB 685.
Who is a “qualifying individual”? It is any person that has: (a) a laboratory-confirmed case of COVID-19; (b) a positive COVID-19 diagnosis from a licensed health care provider; or (c) a COVID-19-related order to isolate provided by a public health official.
Note that an employee who provides only informal notice that he or she “may have been” exposed to a friend or family member with COVID-19 is not a “qualifying individual” under AB 685, unless and until the employee has a laboratory-confirmed case or a diagnosis from a licensed health care provider, or an order to isolate from a public health official. Nevertheless, to protect the workplace and the health and safety of all personnel, employers should remove an employee who “may have been” exposed to COVID-19 from the workplace until further testing or diagnosis can be obtained.
What is a “notice of a potential exposure to COVID-19”? Notice of a potential exposure includes: (a) notification from a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite; (b) notice from an employee or the employee’s emergency contact that the employee is a qualifying individual; (c) notice through the employer’s own testing protocol that the employee is a qualifying individual; or (d) notification from a subcontracted employer that a qualifying individual was on the employer’s worksite.
How broadly does OSHA define the term “worksite”? It is defined to mean “…the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” The definition of worksite excludes “…buildings, floors, or other locations of the employer that a qualified individual did not enter.” It appears that it does not include an employee's telework site if the employee has not interacted with others at a qualifying "worksite."
If notice is required, how soon must it be sent out? Notice must be provided within one business day after receipt of the “notice of a potential exposure to COVID-19” at the “worksite.”
What information must be contained in the notice? The notice must include four things: (1) a notice of the potential exposure to COVID-19; (2) information about the employer’s COVID-19-related benefits applicable to employees under federal, state, or local laws. This might include workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions; (3) information about anti-retaliation and anti-discrimination protections for employees; and, (4) the disinfection and safety plan that the employer plans to implement and complete per the CDC guidelines.
Who gets the notice? All employees (and the employers of any subcontracted employees) who were on the premises at the same worksite as the COVID-19 individual within the infectious period. “Exclusive representatives” of the employees (e.g., a union representative) also must receive a notice which includes the same information required to be listed on an incident report (Cal/OSHA Form 300 injury and illness log), unless the information is inapplicable or unknown to the employer. This is true even if the employer is not otherwise required to maintain the Form 300.
If an employer receives notice of a COVID-19 outbreak, the employer also must notify the local public health agency of the names, number, occupation, and worksite of employees who are COVID-19 positive. This notice must be given within 48 hours. The employer also must continue to update the local public health department regarding any new laboratory-confirmed cases.
How does the employer provide notice? Notice must be provided in the same manner that “…the employer normally uses to communicate employment-related information.” Notice can be sent by any method that will reach the exposed employees within one business day (e.g., personal service, overnight mail, email, text message). The notice must be in English as well as any other language understood by a majority of the employees.
Is anyone excluded from these provisions? Yes. The law excludes certain health facilities and “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.”
Are there any record-keeping requirements? Yes, records of written notices issued under this section must be kept for three years.
AB 685 also expands Cal-OSHA’s authority to prohibit usage of or entry into any area or “…a place of employment, operation, or process, or any part thereof, [that] exposes workers to the risk of infection with [COVID-19] so as to constitute an imminent hazard to employees.” If this occurs, Cal-OSHA will provide an employer with a notice that must be posted in a conspicuous location.
This entry/use prohibition will be limited only to the immediate area of “imminent hazard,” and it will not stop an employer from doing business in areas outside the area of “imminent hazard.” The employer also will be allowed to enter the area to eliminate the “dangerous condition.”
This bill also expands Cal-OSHA’s citation authority related to “serious violations.”
For questions regarding COVID-19 issues or other employment questions specific to your company, contact the employment attorneys at LightGabler.