On September 17, 2020, Governor Gavin Newsom signed AB 685, a new law establishing stringent COVID-19-related notice and reporting requirements for public and private employers. It also boosts the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 enforcement authority. The new law takes effect January 1, 2021, but employers should quickly become aware of its complicated requirements in order to ensure compliance in January.
If an employer receives notice of a “potential exposure to COVID-19,” the employer must, within one business day, take the following actions.
- The employer must provide written notice to all employees (and their exclusive representative, if any) and the employers of subcontracted employees, who were on the premises at the same worksite as the “qualifying individual within the infectious period,” that they may have been exposed to COVID-19. Written notice may be provided in person, email, text message or other form of communications the employer normally uses if it can reasonably be anticipated that the employee will receive it within one business day. Additionally, the notice must be in both English and any language understood by the majority of employees. The new law also requires that the notice to any exclusive representative must contain the same information required in Cal/OSHA’s Form 300, Log of Work-Related Injuries and Illnesses, unless the information is inapplicable or unknown to the employer.
- The employer must provide “all employees who may have been exposed” (and their exclusive representative, if any) with information regarding COVID-19-related benefits to which they may be entitled under federal, state or local laws, including, but not limited to, workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave or negotiated leave provisions, as well as anti-retaliation and anti-discrimination employee protections.
- The employer must notify all employees (and their exclusive representative, if any) of the disinfection and safety plan that the employer plans to implement per the guidelines of the federal Centers for Disease Control and Prevention (CDC).
Employers should note that the new law uses three different phrases, in quotes above, to describe employees to whom notices must be given. The inconsistent language raises some uncertainty about which notices must be sent to which group of employees. Employers should consult with legal counsel on how to address this issue.
These notice requirements are triggered when an employer receives “notice of a potential exposure to COVID-19,” which the law defines as notification:
- From a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite;
- From an employee or their emergency contact that the employee is a “qualifying individual;”
- Through the testing protocol of the employer that the employee is a “qualifying individual;” or
- From a subcontracted employee that a “qualifying individual” was on the worksite.
A “qualifying individual” is someone who has: (1) a lab-confirmed case of COVID-19, (2) a COVID-19 diagnosis from a licensed health care provider, (3) a COVID-19 isolation order provided by a public health official or (4) died due to COVID-19.
In addition to the notice requirements above, AB 685 requires employers to notify their local public health agency within 48 hours of a COVID-19 “outbreak,” as defined by the California Department of Public Health (CDPH). At the time of publication, the CDPH defined an outbreak in most instances as three lab-confirmed cases within two weeks, though CDPH could revise this definition. Notice to the local public health department must include the names, number, occupation and worksite of the “qualified individual” employees as well as the business address and NAICS worksite code. Any employer who has an outbreak under the new law must continue to give notice to the local public health department of any subsequent lab-confirmed cases of COVID-19 at the worksite. Employers should note that the definition of “outbreak” under this law differs from the definition under SB 1159, which is related to workers’ compensation.
AB 685 excludes from the notice requirements employees who, as part of their duties, conduct COVID-19 testing or screening, or provide direct patient care of treatment to individuals who tested positive for COVID-19, unless the qualifying individual is an employee at the same worksite. Additionally, the outbreak notice requirements don’t apply to “health facilities” as defined by Health and Safety Code Section 1250. The author has also expressed interest in cleanup legislation to broaden this exemption to other healthcare-related fields which already have similar reporting requirements – but that legislation is, at this time, only a potential
Employers must keep records of the above notifications for three years.
Because the new law specifies very detailed notice requirements with very little time to provide them, employers should become familiar with them quickly (as well as requirements of SB 1159), and consult with legal counsel to develop the necessary policies and procedures so they can be in place January 1, 2021, when the law takes effect.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
CalChamber employment law experts will cover the new employment laws for 2020 in the October 15 issue of our HRCalifornia Extra newsletter (subscribe to HRCalifornia Extra) and in our annual new laws whitepaper (coming in November). Not a member? See how CalChamber can help you.
