Last Updated on November 24, 2020 by bigfish-admin
On September 17, 2020, California Governor Gavin Newsom signed AB-685, which requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to COVID-19. AB-685 also authorizes Cal/OSHA to prohibit operations, prohibit processes, and prevent entry into workplaces that Cal/OSHA has determined to present a risk of COVID-19 infection so severe as to constitute an imminent hazard. AB-685 further authorizes Cal/OSHA to issue citations for serious COVID-19 related violations without requiring the agency to comply with pre-citation requirements.
AB-685 confirms the current California law requiring employers to report certain occupational injuries and illnesses within a prescribed period, and goes on to state that employers must report to Cal/OSHA any COVID-19 cases that satisfy Cal/OSHA’s definition of serious injury or illness. In order to satisfy this requirement, employers must establish a process for employees to report potential exposure, testing, and/or symptoms of COVID-19. Employers must also assess any employee COVID-19 cases to determine whether additional reporting is required under Cal/OSHA regulations.
WHO MUST BE NOTIFIED
In addition to notifying Cal/OSHA of a COVID-19 case that meets the definition of a serious occupational injury or illness, AB-685 requires employers that have been notified of potential COVID-19 exposure (i.e., if an individual who tested positive for COVID-19 was in the workplace) to provide a written notice to:
- Employees and subcontractor employees who were present at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result.
- The employees’ exclusive representative, if applicable.
WHEN NOTIFICATIONS MUST HAPPEN
This notice must be provided within one business day of the employer being notified of potential exposure and may be done in “a manner that the employer normally uses to communicate employment-related information,” such as personal service, mail, or text message. The notice should be drafted to protect employee privacy and not disclose personally identifiable or health-related information. The notice should also include information on COVID-19-related benefits an employee may be entitled to, along with the disinfection and safety plan implemented by the employer in accordance with CDC guidance.
An employer may also need to notify its local public health department of COVID-19 cases, if the number of cases meets the criteria of a COVID-19 outbreak as currently defined by the California State Department of Public Health. In the event of an outbreak, the employer must notify its local public health department within 48 hours and be prepared to provide further information on the number of COVID-19 cases at the workplace, employees’ names, employees’ occupations, and other pertinent information. The employer will then need to continue working with the local health department to provide updates on the confirmed COVID-19 cases. Notifications required under AB-685 do not alter or change work-relatedness determination for COVID-19 cases under Cal/OSHA regulations. AB-685 further requires that employers maintain records of written notifications for at least 3 years.
AB-685 authorizes Cal/OSHA to act when, “in its opinion,” employees are exposed to COVID-19 in such a manner as to constitute imminent hazard by:
- Prohibiting entry or access to a worksite.
- Prohibiting performance of an operation or process at the worksite.
- Requiring an employer to post an imminent hazard notice at the worksite.
In treating an employer’s worksite as an imminent hazard to COVID-19 exposure, Cal/OSHA must limit its restrictions on employer’s worksite to the immediate area where the hazard was identified. Additionally, Cal/OSHA’s restrictions must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” These provisions will sunset on January 1, 2023.
Typically, Cal/OSHA regulations require a strict process for “serious violations,” in which Cal/OSHA creates a rebuttable presumption of a serious violation following an inspection, which is then shared with the employer, who is given a chance to rebut the presumption. For COVID-19 hazards and violations only, AB-685 streamlines this process by allowing Cal/OSHA to issue a citation alleging a serious violation without requiring the agency to solicit information rebutting the presumption. Accordingly, Cal/OSHA would not need to notify an employer 15 days before issuing a serious violation related to COVID-19. This exemption will be repealed on January 1, 2023.
Big Fish will continue to report on further developments to this law and other COVID-19-related legislation nationwide. Information contained in this publication is intended for educational or informational purposes only and does not constitute legal advice or opinion, nor is this a substitute for the professional judgment of an attorney.