On September 17, 2020 the Governor signed AB 685, a new law, to be in effect from January 1, 2021, until January 1, 2023, that requires employers to comply with specific notification requirements any time there has been a potential COVID-19 exposure in the workplace. AB 685 has also fortified Cal/OSHA’s COVID-19 regulation enforcement abilities.
Whenever an employer is put on notice that a “qualifying individual” (someone who tested positive for COVID-19 or is subjected to an isolation order) was in the workplace while they were considered potentially infectious, the employer must provide written notice to individuals who “may have been exposed” in the workplace, including employees, subcontractors, and union representatives. This notice must be provided within one business day of when the employer is put on notice.
Employers with multiple buildings or floors do not necessarily need to provide notice throughout the entire company— the notice requirement is limited to the specific “worksite” the qualifying individual entered, not the entire company or facility site.
Employers also must notify the local public health department within 48 hours of becoming aware of a COVID-19 workplace “outbreak” (as defined by the State Department of Public Health). This notification requirement encompasses the number of COVID-19 cases at the worksite, as well as names, occupations and worksites of qualifying individuals. Employers must also notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. The California Department of Public Health currently defines an outbreak as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.
The notice must advise individuals who were at the workplace during the qualifying individual’s infectious period that they “may have been exposed to COVID-19.” The notice also must inform all employees “who may have been exposed” about benefits to which employees may be entitled under federal, state, or local law, including workers’ compensation, paid sick leave, negotiated leave, and anti-retaliation and anti-discrimination protections. Those individuals entitled to receive the notice must, in addition, be notified about the disinfection and safety plans that the employer plans to implement and complete per CDC guidelines. The written notification must be sent in a manner normally used by the employer to communicate employment-related information, must be in both English and the language understood by the majority of the employees, and must protect employee and individual privacy Employers are required to maintain records of the written notification for at least three years.
Cal/OSHA is authorized to shut down a worksite if it determines the worksite presents an “imminent hazard.” However, AB 685 adds Section 6325(b) to the Labor Code, which reiterates that the Division of Occupational Safety and Health can close down a business if it deems there is an “imminent hazard” related to potential COVID-19 transmission.
AB 685 also exempts the Division from sending notices of intent to issue serious citations (as is normally required) when the alleged hazard is COVID-19 related. Ordinarily, if Cal/OSHA plans to issue a serious citation, it first sends a notice of intent, and employers have the option of responding with evidence. Now, if Cal/OSHA intends to issue a serious citation for an alleged COVID-19 hazard, it need not issue a notice of intent or consider the employer’s evidence.
It behooves employers who have an employee with COVID-19 or have an outbreak of COVID-19 in the workplace to immediately contact their legal counsel to assure they strictly comply with these new laws and guidelines. Failure to do so risks fines, penalties, legal actions as well as a business shutdown.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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