California introduced a bill requiring employers to notify employees and relevant government entities within 24 hours upon learning of any employee exposure to COVID-19
The bill’s requirements are wide-ranging and it does not provide clear guidance on establishing a protocol for compliance
California employers can anticipate measures like this to become a permanent part of the occupational health and safety landscape
As employers are adapting to rebuilding the workplace during a pandemic, California recently introduced a bill that will require employers to provide “specified notifications” to its employees and relevant governmental entities of any employee exposure to COVID-19 “that the employer knew of or should have reasonably have known of.” Assembly Bill No. 685 (AB 685), amended in the Senate on June 29, 2020, seeks to add Section 6406.6 to the California Labor Code. Failure to abide by the notification requirements would result in a misdemeanor to the employer, punishable by a $10,000 fine.
While AB 685 is still in its composition stages, its introduction is another indicator of the changing paradigm of the workplace and, in particular, new and increasing obligations on the employer. The bill aligns with existing requirements to report every occupational injury or illness—of which the violation is also criminal—and will expand to “exposure to COVID-19,” to be codified under Labor Code section 6406.6. While the statute is designed to protect employees and the workplace, the proposed language also cites an interest in “[allowing] the public to track outbreaks,” by requiring the information to be provided to the Division of Occupational Safety and Health and the State Department of Public Health, and made accessible on their respective internet websites.
Public Interest in Accurately Tracking and Reporting Exposure
In its text, AB 685 first recognizes that COVID-19 “continues to ravage California” and that gathering thorough and accurate data is essential to limiting exposure and minimizing spread. Tracking workplace exposure and using that data will provide more means to keep workers safe on the job. The text also expressly identifies the “disproportionately high” numbers of infections and deaths in the Latino, Black, and Asian-Pacific Islander communities, and intends for the information gathered to inform policy makers to address health care disparities, as well as to protect vulnerable workers. AB 685 additionally calls out the current lack of clarity in reporting requirements, the deficiency of which has “led to workers and members of the public living in fear for their own safety, unaware of where outbreaks may already be occurring.”
Proposed Reporting Requirements
If adopted, the amendment to the California Labor Code would require employers to provide notification, within 24 hours, if an employee is exposed to COVID-19 that the employer knew or reasonably should have known, by doing all of the following:
- Provide a notice to all employees at the worksite where the exposure occurred that they may have been exposed to COVID-19, in writing in both English and the language understood by the majority of the employees. Employers must also make every reasonable effort necessary to notify workers verbally.
- Notify the exclusive representative, if any, in writing in both English and the language understood by the majority of the employees. Employers must also make every reasonable effort necessary to notify workers verbally.
- Notify all employees and the exclusive representative, if any, of options for exposed employees including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions.
- Notify all employees and the exclusive representative, if any, on the cleaning and disinfecting plan that the employer plans to implement prior to resuming work.
- Notify the Division of Occupational Safety and Health (DOSH) of the number of employees by occupation with a COVID-19 positive test, diagnosis, order to quarantine, or death that could be COVID-19 related.
- Notify the California Department of Public Health (CDPH) and the appropriate local public health agency of the number of employees by occupation with a COVID-19 positive test, diagnosis, order to quarantine, or death that could be COVID-19 related.
Further, the section defines “(e)xposed to COVID-19” as a positive COVID-19 test; a positive diagnosis from a licensed health provider; a related order to quarantine from a licensed health provider; or a fatality that was or could have been caused by COVID-19. The information reported to and received by DOSH and CDPH will then be made available to the public on their respective websites for the purpose of tracking outbreaks, the number of COVID-19 cases reported by any workplace, and the occupation of employees involved.
Notably, Section 6406.6 would apply to both private and public employers, with a violation constituting a misdemeanor carrying a $10,000 fine.
What Comes Next?
Though seeking to clarify the current law on reporting requirements, AB 685’s own requirements are wide-ranging and the bill not provide clear guidance on how employers can establish a protocol to readily comply. However, with California infection numbers on the rise and few solutions for limiting spread, balanced against the need for business operations to resume, employers can anticipate measures like this to become a permanent part of the occupational health and safety landscape. AB 685 also signals COVID-19-specific legislation on the horizon, which may alter employer exposure and risk without appropriate and immediate adjustments.
For more information on this proposed legislation or for immediate guidance, contact:
- Karen Luh
- Caroline J. Berdzik
- Peter J. Woo
- Kristin Klein Wheaton
- Or another member of Goldberg Segalla’s Employment and Labor practice