On September 17, 2020, California Governor Gavin Newsom signed AB 685 into law, which goes into effect on January 1, 2021. The law does two things: (1) it creates an enforceable statewide standard for how employers handle potential exposure to COVID-19 and outbreaks of COVID-19 in the workplace; and (2) it expands the power of California’s Division of Occupational Safety and Health (Cal/OSHA) to enforce this standard and to take action to protect employees, including shutting down worksites deemed to be an “imminent hazard” due to COVID-19 risk. These provisions will expire on January 1, 2023.
Under the new law, employers are required to provide written notice to employees of a potential exposure to COVID-19 in the workplace. In sum, an employer is required to engage in a notice protocol if the employer is notified that: (i) an employee has COVID-19; (ii) an employee has been ordered to isolate related to COVID-19; (iii) an employee has died from COVID-19; or (iv) an employee or the worksite itself has been exposed to someone fitting the description of (i), (ii) or (iii). The following Frequently Asked Questions are provided to guide employers through how the new law will require employers to handle a potential exposure scenario, and to explain the new authority of Cal/OSHA’s enforcement powers.
Employer Notice and Reporting Requirements Regarding COVID-19 Exposure in the Workplace (Effective 1/1/2021)
The new law requires an employer to provide certain notices once the employer has “notice of potential exposure” to COVID-19.
What does it mean to have “notice of potential exposure” to COVID-19? An employer is considered to have “notice of potential exposure” to COVID-19 when:
A public health official or licensed medical provider notifies the employer that an employee was exposed to a Qualifying Individual;
An employee (or their emergency contact) notifies the employer that the employee is a Qualifying Individual;
The testing protocol of the employer reveals that the employee is a Qualifying Individual; or
A subcontracted employer notifies the employer that a Qualifying Individual was on the worksite of the employer receiving notification.
What is a Qualifying Individual? Someone is a Qualifying Individual if they:
Have a laboratory-confirmed case of COVID-19;
Are diagnosed with COVID-19 by a licensed health care provider;
Are under an COVID-19-related order to isolate provided by a public health official; or
Have died due to COVID-19 as determined by the county public health department.
If a Qualifying Individual is identified and the employer has notice of a potential exposure, the employer’s obligation to provide notice to the workforce is triggered.
How must the employer give notice? The notice must be written and given in a manner the employer normally uses to communicate employment-related information. For example, if the employer regularly communicates workplace updates to employees via email, the notice must be provided via email.
Who must be notified? Notice must be provided to all employees who were on the premises at the same worksite as the qualifying individual within the Infectious Period. Currently, the California Department of Public Health defines the Infectious Period as 14 days, including, at a minimum, the 48 hours before the individual developed symptoms. The law does not address when the Infectious Period begins for asymptomatic individuals so in those cases an employer may ask the Qualifying Individual contact tracing questions to determine when the individual first came into contact with a COVID-19-positive individual.
Additionally, employers must notify the worksite’s local public health department of COVID-19 outbreaks (currently defined by California State Department of Public Health to be three or more cases in a 14-day period) within 48 hours of learning of the outbreak. Employers must provide the public health department the names, numbers, occupations and worksite(s) of all individuals who are Qualifying Individuals, as well as the business address and North American Industry Classification System (NAICS) code of the worksite(s) of the Qualifying Individuals. An employer experiencing outbreak must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite(s).
When must notice be provided to the potentially affected employees? Notice must be provided to the potentially affected employees within one business day of employer finding out about such potential exposure.
What information is required to be in the notice to the potentially affected employees? Employers must provide all employees who have been potentially exposed (and their exclusive representative, if any) with information related to COVID-19 benefits to which the employee may be entitled under law, including, but not limited to: workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental leave or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections. Employers should not include the name of, or any identifying information related to, the Qualifying Individual (or of the employee exposed to the Qualifying Individual, if applicable).
What are the recordkeeping requirements? Employers must maintain records of written notifications of COVID-19 potential exposure or outbreaks for at least three years. This information should be kept in a confidential manner, similar to the manner in which the employer maintains other confidential employee medical information.
Cal/OSHA’s Expanded Power to Enforce Safety Violations (Effective 1/1/2021)
Cal/OSHA is responsible for protecting and improving the health and safety of workers throughout California. The organization is tasked with enforcing workplace safety standards through complaints and accident investigations, targeted and programed inspections, and citations and orders to take special action, among other things.
AB 685 expands Cal/OSHA’s power to enforce safety violations through immediate worksite shutdowns and citations.
Can Cal/OSHA require a business to shut down due to COVID-19-related safety violations? If so, what conditions must exist for Cal/OSHA to do this? Yes. Cal/OSHA is authorized to act when it believes employees are exposed to COVID-19 in such a manner as to constitute an “imminent hazard.”
Three conditions must be met before a hazard becomes an imminent hazard:
There must be a threat of death or serious physical harm.
For a health hazard, there must be a reasonable expectation that toxic substances are present and exposure to them will shorten life or cause significant reduction in physical or mental efficiency.
The threat must be imminent or immediate. This means that death or serious physical harm could occur within a short time, for example, before Cal/OSHA could investigate the problem.
If an “imminent hazard” is found by Cal/OSHA, will it shut down the entire worksite? Not necessarily. Cal/OSHA must limit its action or restriction on the employer’s worksite to the immediate area where the hazard was identified. Cal/OSHA is authorized to:
Prohibit entry or access to a worksite;
Prohibit performance of an operation or process at a worksite; or
Require posting of an imminent hazard notice at the worksite.
When is a General Violation, when does it turn into a Serious Violation and what does that mean? Under Cal/OSHA, a General Violation is a violation which is specifically determined not to be of a serious nature, but has a relationship to occupational safety and health of employees. (8 CCR §334(b).) A Serious Violation exists where there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. (8 CCR §334(c)(1).) An actual hazard may include a serious exposure exceeding an established permissible exposure limit or the existence in the place of employment of one or more unsafe or unhealthful practices, means, methods, operations, or processes that have been adopted or are in use. (8 CCR §334(c)(2)(A)-(B).)
How is a COVID-19 Serious Violation different from other Serious Violations under Cal/OSHA? In non-COVID-19 cases, if Cal/OSHA establishes a presumption of a Serious Violation, the employer has 15 days prior to Cal/OSHA issuing a Serious Violation to rebut the citation. During that time the employer may rebut the presumption with evidence and establish that a violation is not serious by demonstrating that the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. (8 CCR §334(c)(3).)
AB 685 accelerates Cal/OSHA’s citation process and allows the agency to issue a citation alleging a Serious Violation immediately, without soliciting rebuttal information from the employer or notifying the employer 15 days in advance.
What are the monetary penalties associated with a Serious Violation? A Serious Violation may be assessed a civil penalty of up to $25,000 for each such violation. (8 CCR §336(c)(1).)