California’s AB 685 Imposes COVID-19 Workplace Exposure Notice and Reporting Requirements for Employers Effective January 1, 2021
Governor Newsom signed Assembly Bill (AB) 685 into law, establishing new requirements for employers to notify employees and their unions about potential workplace COVID-19 exposures effective January 1, 2021
The new law requires employers to report a COVID-19 “outbreak” at the worksite to local health authorities
AB 685 also eases pre-citation requirements that the California Division of Occupational Safety and Health (Cal-OSHA) must typically follow before issuing a citation for a serious violation related to COVID-19 and provides that Cal-OSHA can shut down operations when a worksite or operation “exposes workers to the risk of infection” of COVID-19, so as to constitute an imminent hazard
On September 17, 2020, Gov. Gavin Newsom signed AB 685 into law, expanding California employers’ notice and reporting obligations relating to COVID-19 in the workplace. The law also made changes to Cal-OSHA’s enforcement of COVID-19-related rules and regulations. The law takes effect on January 1, 2021, and will remain in place until January 1, 2023.
Requirements for Notifying Employees of COVID-19 Exposure
Throughout the COVID-19 pandemic, employers have been advised to notify employees who may have been in close contact with an infected employee. In July, the California Department of Public Health (CDPH) issued guidance titled “COVID-19 Employer Playbook for a Safe Reopening” and went as far as providing a sample communication for an employer to provide employees and who were potentially exposed to COVID-19.
Under newly enacted California Labor Code Section 6409.6, the requirement to notify employees of a potential exposure goes beyond guidance and becomes mandatory. Specifically, the new notice requires employers to take the below actions within one business day of a “potential exposure” based on a confirmed positive case of COVID-19 in the workplace:
- Notice to Employees and Subcontractor Employers―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.
- Notice to Employee Representatives―Provide written notice to employee representatives, including unions and attorneys that are representing employees.
- Notice to Employees Regarding COVID-19-Related Benefits―Provide written notice to employees and/or employee representatives regarding COVID-19 benefits that an employee may receive, including workers’ compensation benefits, paid sick leave, supplemental paid sick leave, as well as the company’s anti-retaliation and anti-discrimination policies.
- Notice to Employees Regarding Safety Protocols―Provide written notice to employees regarding the employer’s disinfection and safety plan to eliminate any further exposures, per CDC guidelines.
Written notice may include personal service, email, or text message if it can be received by the employee within one business day of sending, and must be in both English and the language understood by the majority of the employees. Notices should not reveal the identity of the employee who tested positive for COVID-19 to preserve employee privacy. Records of these notices must be maintained for at least three years.
Employers should also revise their reporting procedures as the new law requires an employer with a “COVID-19 outbreak,” to report prescribed information to the local public health agency in the jurisdiction of the workplace within 48 hours of learning of the outbreak. As of October 16, 2020, the CDPH defined a COVID-19 outbreak in a non-healthcare workplace as having at least three laboratory-confirmed COVID-19 cases among workers at the same worksite within a 14-day period. The employer must also continue to provide notice to the local health agency of any subsequent laboratory-confirmed cases of COVD-19 at the workplace.
Cal-OSHA Enforcement Changes
Cal-OSHA already has the authority to shut down a worksite that presents an imminent hazard, which is defined as a “hazard which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the hazard can be eliminated through regular Cal-OSHA enforcement procedures.” AB 685 provides that Cal-OSHA can now shut down operations when, in the opinion of Cal-OSHA, a worksite or operation “exposes workers to the risk of infection” of COVID-19, so as to constitute an imminent hazard.
AB 685 also modifies the process for when Cal-OSHA intends to issue a serious citation. Normally, if Cal-OSHA plans to issue a serious citation, the agency must first provide a notice of intent to the employer that identifies alleged violations and conditions that warrant a citation. The employer then has the option of responding to the notice with evidence within 15 days. AB 685 eliminates the requirement for Cal-OSHA to provide a notice for COVID-19-related hazards. As a result, Cal-OSHA can effectively issue a citation immediately and employers will no longer have the ability to learn of a citation in advance and respond accordingly.
While AB 685 is not effective until January 1, 2021, employers should review and update their COVID-19 response plans in advance of the January 1, 2021 compliance deadline. Most notably, given that employee notices must be circulated within one business day, it’s imperative that employers have their employee notice process in place in advance of January 1, 2021. Furthermore, given the lack of a Cal-OSHA notice period, employers must be prepared to move quickly when responding to a COVID-19-related Cal-OSHA investigation or citation.
If you have any questions about your COVID-19 notice and reporting policies, contact:
- Erica B. Row
- Matthew B. Golper
- Caroline J. Berdzik
- Peter J. Woo
- Kristin Klein Wheaton
- Or another member of the Employment and Labor team