On September 17, 2020, Governor Gavin Newsom signed AB 685 into law which places certain reporting obligations on the employer relating to COVID-19. It also expands the power of the California Occupational Safety and Health Administration (Cal/OSHA) to enforce and take action to protect employees. AB 685 goes into effect on January 1, 2021.

Notice Requirements to Employees

The new law requires employers to take all of the following actions within 24 hours after the employer has “notice of the potential exposure” to COVID-19, which is defined below: 

• Provide written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19.  It is prudent for employers to also consider notifying any identifiable third parties who were at the worksite during the infectious period.
• Provide written notice to employee representatives, including unions and in certain circumstances attorneys, who may represent employees.
• Provide written notice to employees and/or employee representatives regarding COVID-19-related benefits that employee(s) may receive, including workers’ compensation benefits, COVID leave, paid sick leave, and the company’s anti-discrimination, anti-harassment, and anti-retaliation policies; and
• Provide notice to employees regarding the company’s disinfection protocols and safety plan to eliminate any further exposures, per the Center for Disease Control (CDC) guidelines.

Written notice may include personal service, e-mail, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending. Notices should be in both English and the language understood by the majority of employees.

Notice Requirements to CAL-OSHA 

Employers must notify the worksite’s local public health department of COVID-19 outbreaks within 48 hours of learning of the COVID “outbreak,” which the California State Department of Public Health defines to mean three or more cases in a 14-day period.

Employers must provide the names, numbers, occupations and worksite(s) of all individuals who are Qualifying Individuals (see definition below), as well as the business address and North American Industry Classification System (NAICS) code of the worksite(s) of the Qualifying Individuals. An employer experiencing an outbreak must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite(s).

Definitions

 “Notice of Potential Exposure” to COVID-19 

An employer has “notice of potential exposure” to COVID-19 when:

• A public health official or licensed medical provider notifies the employer that an employee was exposed to a Qualifying Individual;
• An employee (or their emergency contact) notifies the employer that the employee is a Qualifying Individual;
• The testing protocol of the employer reveals that the employee is a Qualifying Individual; or
• A subcontracted employer notifies the employer that a Qualifying Individual was at the employer’s worksite.

 “Potential Exposure”

The CDC considers “potential exposure” to mean:

• Being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19. The timeframe for having contact with an individual includes the period of time of 48 hours before the individual became symptomatic.

The CDC considers “close contact” to mean:

• Any individual who was within 6 feet of an infected person for at least 15 minutes starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to positive specimen collection) until the time the patient is isolated.

Note: This is irrespective of whether the person with COVID-19 or the contact was wearing a mask or respiratory personal protective equipment (PPE). 

“Qualifying Individual” 

If a Qualifying Individual is identified and the employer has notice of a potential exposure, the employer’s obligation to provide notice to the workforce is triggered.

Someone is a Qualifying Individual if they:

• Have a laboratory-confirmed case of COVID-19;
• Are diagnosed with COVID-19 by a licensed health care provider;
• Are under a COVID-19-related order to isolate provided by a public health official; or
• Have died due to COVID-19 as determined by the county public health department.

 “Infectious Period” 

The California Department of Public Health currently defines the Infectious Period as 14 days, including, at a minimum, the 48 hours before the individual developed symptoms. The law does not address when the Infectious Period begins for asymptomatic individuals so in those cases an employer may ask the Qualifying Individual contact tracing questions to determine when the individual first came into contact with a COVID-19-positive individual.

Recordkeeping Requirements

Employers must maintain records of notifications of COVID-19 potential exposure or outbreaks for at least three years. This information should be kept in a confidential manner.

Retaliation Prohibited 

AB 685 prohibits retaliation against qualifying individuals, as do with many other state and local COVID-19–related statutes and ordinances.

Accelerated Enforcement Rights of Cal/OSHA 

AB 685 expands Cal/OSHA’s power to enforce safety violations through immediate worksite shutdowns and citations.  The new law also accelerates Cal/OSHA’s citation process and allows the agency to issue a citation alleging a Serious Violation immediately, without soliciting rebuttal information from the employer or notifying the employer 15 days in advance.

Potential Ramifications

A Serious Violation may be assessed a civil penalty of up to $25,000 for each such violation. An employer’s failure to adhere to the proposed notification requirements would be a misdemeanor carrying a $10,000 fine.

Call Hill Farrer for Further Questions

Please contact your Hill Farrer attorney or any member of our Labor and Employment department for additional information and assistance with complying with this new law.