Employment Law Bulletin | October 21, 2020
AB 685 – New Employer Obligations to Notify Employees of “Potential Exposure” to COVID-19
Governor Newsom recently signed Assembly Bill 685 requiring employers to notify employees and local public health authorities if employees have been “potentially exposed” to COVID-19 in the workplace. The Bill also requires employers to notify employees of COVID-19 related benefits and the disinfection and safety plan the employer will implement and complete in accordance with the Centers for Disease Control (CDC) guidelines.
In addition, AB 685 grants Cal/OSHA the authority to shut down a worksite that exposes employees to an “imminent health hazard” related to COVID-19, and to issue citations for serious violations related to COVID-19 without giving employers 15-day’s notice before issuance.
The law is effective from January 1, 2021 until January 1, 2023. Details of the law and your obligations are below. Italicized terms are defined later in the article.
Notice to Employees, Subcontracted Employees and Employee Representatives
If an employer receives notice of potential exposure to COVID-19, the employer must provide the following written notices within one business day of notice of the potential exposure:
- Notice of Potential Exposure:
- notice to all employees who were on the premises at the same worksite as the individual within the infectious period that they may have been exposed to COVID-19;
- notice to employee representatives (e.g. unions) who may represent employees;
- sent by means that ensure the employee receives it within one business day of sending;
- notice must be in English and the language understood by a majority of employees.
- Notice of COVID-19 Employee Benefits:
- the availability of workers’ compensation benefits (if the employee believes COVID-19 was contracted in the workplace);
- the availability of COVID-19-related leave benefits (e.g. Families First Coronavirus Response Act emergency paid sick leave, Santa Rosa Temporary Paid Sick Leave ordinance, other local ordinances related to COVID-19 sick leave);
- the availability of the employer’s regular paid sick leave benefit;
- the availability of family/medical leave (for employers of 50 or more employees);
- the employer’s anti-discrimination, anti-harassment and anti-retaliation policies.
- Notice of Disinfection and Safety Plan:
- notice to all employees and their exclusive representative, of the disinfection and safety plan the employer plans to implement and complete per CDC guidelines.
Notice to the Local Public Health Agency
If an employer is notified of the number of cases that meet the definition of a COVID-19 Outbreak, as defined by the State Department of Public Health, the employer must provide notice of the following to the local public health agency within 48 hours:
- the names, number, occupation, and worksite of employees who meet the definition of a qualifying individual;
- the business address and NAICS code of the worksite where the qualifying individual works;
- an employer that has an outbreak shall continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
No Disclosure of Medical Information
The employer may not require employees to disclose medical information unless otherwise required by law.
No Retaliation
- employers may not retaliate against a worker for disclosing a positive COVID-19 test, diagnosis or order to quarantine or isolate;
- employees may file retaliation complaints with the Labor Commissioner.
Application of Law
- applies to both private and public employers;
- exceptions
- does not apply to a “health facility,” as defined in Section 1250 of the Health and Safety Code;
- does not apply to 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.
Recordkeeping Requirements
Employers must maintain written notices for at least three years.
Enforcement
OSHA may issue citations/penalties.
Definitions
- COVID-19 Outbreak (see Outbreak Definition and Reporting Guidance):
- outbreak in a non-health care setting – three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households;
- outbreak in a skilled nursing facility – at least one case of laboratory-confirmed COVID-19 in a resident.
- “Infectious period” means the time a COVID-19 positive individual is infectious, as defined by the State Department of Public Health. In California, the “infectious period” is the 48 hour period before the individual developed symptoms.
- “Notice of potential exposure” means any of the following:
- notification to the employer from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite;
- notification to the employer from an employee, or their emergency contact, that the employee is a qualifying individual;
- notification through the testing protocol of the employer that the employee is a qualifying individual; or
- notification to an employer from a subcontracted employer that a qualifying individual was on the worksite of the employer receiving notification.
- “Qualifying individual” means any person who has any of the following:
- a laboratory confirmed case of COVID-19;
- a positive COVID-19 diagnosis from a licensed health care provider;
- a COVID-19 related order to isolate provided by a public health official; or
- died due to COVID-19.
- “Worksite”
- means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period;
- it does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter;
- in a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.
Reporting to Cal/OSHA
- employers must report cases of COVID-19 workplace exposure to Cal/OSHA within eight hours if the employee is admitted to the hospital;
- employers must record confirmed COVID-19 cases on the employer’s Log 300 if:
- it is work-related (an event or exposure in the work environment either caused or contributed to the resulting condition); and
- resulted in:
- lost time from work (other than the day off);
- medical treatment beyond first aid;
- loss of consciousness; or
- death.
Next Steps
AB 685 requires a lot of employers, but compliance is not required until January 1, 2021. Contact an SMT employment attorney for assistance with developing procedures, policies and forms to comply with this new law.
No Se Habla Español?
SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.
Spaulding McCullough & Tansil LLP
Employment Law Group
