AB 685 Imposes New Notice and Reporting Obligations for COVID-19 Workplace Exposure

AB 685 — Notice Obligations for COVID-19 Exposures in the Workplace and Cal/OSHA Enforcement Changes (Effective Jan. 1, 2021)

AB 685 — An act to amend, repeal, add Sections 6325 and 6432 of and add and repeal Section 6409.6 of the Labor Code relating to occupational safety.

As COVID-19 continues to ravage California, the Legislature has found it necessary to enact temporary labor code enhancements. The goal is to minimize the spread and injury caused by COVID-19, and to gather accurate data related to its spread. The California legislature found that the law lacked clarity for employees potentially exposed to COVID-19, which has led to some workers and the public fearing for their safety as it was unknown where outbreaks were occurring. Therefore, the Legislature amended the California Labor Code to require employers to immediately report any positive COVID-19 tests/ diagnoses to relevant state agencies, the place of occupation, and the public’s members.

OVERVIEW OF NEW COVID-19 AB 685 LAW

AB-685 greatly increases the requirements that private and public employers must follow. Failure to do so could lead the Division of Occupational Safety and Health of California’s (Cal/OSHA) authority to shut down worksites deemed to be an “imminent hazard” due to COVID-19 and issue “serious violation” citations.

Read more about AB 685 and its enforcement and citations.

Stay up-to-date about legal business protocol by reading our News & Events.

WHAT TO DO IF AN EMPLOYER RECEIVES A NOTICE OF POTENTIAL EXPOSURE TO COVID-19 AT THEIR WORKPLACE

AB 685 adds under Labor Code 6409.6 that the employer should do all of the following for each individual potentially exposed to COVID-19 within one business day of the notice of potential exposure:

• Provide written notice to all employees and subcontracted employees present at the same worksite (the immediate location where a worker worked during the infectious period) as the qualifying individual during the infectious period (as defined by the State Department of Public Health) that they may have been exposed to COVID-19.
  • The notice may be in many different media such as email, text message, and personal service.
  • The notice needs to be reasonably anticipated to be received within one business day of sending it.
  • The notice’s language should be in English, and the language understood by the majority of employees.
  • The employer is required to maintain these records for at least three years.
• Provide notice to any exposed employees’ labor organization/exclusive representative (if any).
  • The notice should contain the same information as required in an incident report in a Cal/OSHA Form 300 injury and illness log unless it is inapplicable or unknown to the employer regardless of whether the employer is required to maintain a Cal/OSHA Form 300 injury and illness log.
• Provide the individual (and labor organization, if applicable) who may have been exposed with information regarding COVID-19 related benefits such as federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including 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 protections of the employee.
• Notify all employees about the plan to disinfect the area and safety plan that the employer intends to implement per the guidelines of the federal Centers for Disease Control.

DEFINITIONS FOR EMPLOYER GUIDELINES (ABOVE)

A notice of potential exposure means any of the following:

• Notification to the employer by public health officials or licensed medical providers that an employee was exposed to a qualifying individual at the worksite.
• Notification to the employer that the employee is a qualifying individual.
• Notification through a testing protocol implemented by the employer that the employee is a qualifying individual.

A qualifying individual is anyone who has:

• A laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health.
• A positive COVID-19 diagnosis from a licensed health care provider.
• A COVID-19-related order to isolate provided by a public health official.
• Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.

WHAT TO DO IF AN EMPLOYER RECEIVES NOTICE OF A COVID-19 OUTBREAK AT THEIR WORKPLACE

If an employer receives 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 within 48 hours:

• Notify the local public health agency of the names, number, occupation, and worksite of employees who meet the definition of a qualifying individual.
• Report the business address and NAICS code of the worksite where the qualifying individuals work.
• Continue to give notice to local health departments of any subsequent lab-confirmed COVID-19 cases at the worksite.

Note that the notification requirements for a potential COVID-19 outbreak do not apply to a “health facility,” as defined in Section 1250 of the California Health & Safety Code.

DANGEROUS WORK LOCATIONS DUE TO COVID-19

AB 685 also amends Labor Code section 6325 to add the risk of COVID-19 infection as a potentially dangerous work condition.

NOTICE OF COVID-19 IMMINENT HAZARD

Labor Code section 6325 is amended to add that when a place of employment, operation, or process exposes workers to the risk of infection with COVID-19 so as to constitute an imminent hazard to employees, the performance of work or entry into such place of employment may be prohibited by the Division of Occupational Safety and Health. The employer will be required to post a notice in a conspicuous place at the place of employment. The notice shall not be removed by anyone other than an authorized representative of the Division of Occupational Safety and Health, nor until the area is made safe and proper safety devices are provided. The prohibition of use will be limited to the immediate area in which the imminent hazard exists, and the division shall not prohibit the performance of any operation or process, entry into or use of a place of employment which is not exposing employees to, or is outside such area of imminent hazard.

This COVID-19 imminent hazard provision would be repealed on January 1, 2023.

PRIVACY OF WORKERS

AB 685 specifically mandates that an employer cannot require employees to disclose medical information unless otherwise required by law.

Furthermore, the need to protect employees’ privacy from the public disclosure of their personally identifiable information outweighs the interest in public disclosure of that information. No personally identifiable employee information shall be subject to a California Public Records Act request or similar request, posted on a public internet website, or shared with any other state or federal agency.

Penalties for Violation of AB 685

The Legislature specifically provided for the issuance of citations and civil penalties for a violation of the above notification requirements.  If an employer receives a citation or penalty, the employer has the right to appeal the citation or penalty to the appeals board.

SEEK LEGAL ASSISTANCE FOR AB 685 AND CAL/OSHA ISSUES

Employers are strongly encouraged to consult counsel whenever (1) there is a positive confirmed case of COVID-19 for guidance on the proper notification/contact tracing requirements, (2) whenever Cal/OSHA contacts them or if an inspector appears at the employer’s worksite, and (3) whenever the employer receives a notice of citation or penalty related to COVID-19 notification requirements.

If you have any questions or would like to seek legal help, please contact our employment attorney, Devin Mikulka.