Received from Hopkins and Carley, Employment Law firm on October 1, 2020
On September 17, 2020, Governor Gavin Newsom signed Assembly Bill 685 (“AB 685”), enacting into law California Labor Code Section 6409.6 (“Section 6409.6”), which establishes new COVID-19 reporting obligations for public and private employers. The law will go into effect on January 1, 2021 and will remain in effect until January 1, 2023. When does the duty to provide notice of a potential COVID-19 exposure arise? The new law obligates employers to provide notice of a potential COVID exposure to employees in four circumstances:
when a public health official or licensed medical provider notifies the employer that an employee was exposed to a “qualifying individual” at the worksite;
when an employee or the employee’s emergency contact notifies the employer that the employee is a “qualifying individual”;
when the employer’s COVID-19 testing process discloses that the employee is a “qualifying individual”; and/or
when a subcontracted employer notifies the employer that a “qualifying individual” was on the employer’s worksite.
The law defines a “qualifying individual” as a person who has (a) a laboratory-confirmed positive case of COVID-19, (b) a positive COVID-19 diagnosis from a licensed health care provider, (c) received an isolation order from a public health official, or (d) died due to COVID-19. What types of notices must an employer provide to employees, and when? Once the obligation to provide notice arises, the new law requires an employer to provide four categories of notices within one business day.
Category 1 (Notice to Potentially Exposed Employees): An employer must notify employees and the employers of subcontracted employees who were at the same “worksite” as the qualifying individual in the “infectious period” and may have been exposed to COVID-19.
Worksite: Section 6409.6(d)(5) defines “worksite” as “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” The term “does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter.” In a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.
Infectious Period: Section 6409.6(d)(2) defines “infectious period” as “the time a COVID-19 positive individual is infectious, as defined by the State Department of Public Health.” Although knowledge regarding COVID-19 is still evolving, the State Department of Public Health currently defines the infectious period as ending (a) at least ten days after the onset of symptoms, (b) at least 24 hours after the resolution of a fever without the use of fever-reducing medication, and (c) when there is an improvement in other symptoms.
Category 2 (Notice to Exclusive Representatives of Potentially Exposed Employees): An employer must additionally provide notice to the exclusive representative, if any, of all potentially infected employees listed under category 1.
Category 3 (Notice of COVID-19 Related Benefits to Potentially Exposed Employees and Their Exclusive Representatives): An employer must also provide notice to all employees who may have been exposed, and to their exclusive representative, if applicable, with information regarding COVID-19-related benefits that the employees may be entitled to receive, including workers’ compensation benefits, COVID-19 related leave, company sick leave, state mandated sick leave, supplemental paid sick leave, leave negotiated under collective bargaining agreements, as well as the company’s anti-retaliation and anti-discrimination policies.
Category 4 (Notice to All Employees and Their Exclusive Representatives of the Employer’s COVID-19 Safety Plan): The employer is also required to notify all employees, employers of subcontracted employees, and the exclusive representative of employees regarding the employer’s COVID-19 disinfection protocols and the safety plan the employer plans to implement to prevent further exposures, pursuant to Centers for Disease Control and Prevention (“CDC”) guidelines.
Do notices need to comply with specific form and content requirements? Yes. The required content of the notice depends upon whether notice is being provided to employees or to their exclusive representatives.
Notice to Employees: The employer must provide written notice in the manner in which the employer usually communicates with employees. Employers may use personal service, email, or text message, so long as it can be reasonably anticipated that employees will receive the notice within one business day. The notice must be in both English and the language understood by the majority of employees. The employer must not reveal identity of the qualifying individual to employees or subcontracted employers.
Notice to Exclusive Representatives: Any union notice must include the same information that a Cal/OSHA Form 300 incident report requires, unless the employer does not know the information or it does not apply. Although disclosure of an employee’s medical information typically violates privacy and confidentiality laws (including the California Confidentiality of Medical Information Act), Section 6409.6 enables employers to disclose information contained in a Form 300 report to an employee’s union representative without the employee’s prior authorization.
What are the employer’s recordkeeping obligations? AB 685 requires that employers maintain records of the written notice referenced in category 1 above for at least three years. What are the consequences for failing to comply with AB 685’s notice requirements? A violation of the notice provisions listed under categories 1, 2, and 4 above will result in a Cal/OSHA citation and a civil penalty. The new law provides a limited appeal process as well. Are employers required to report outbreaks of COVID-19 to local health authorities? In addition to providing the notices described above to employees and their union representatives, Section 6409.6(b) requires employers to notify the applicable local public health agency within 48 hours of notice of a COVID-19 “outbreak.” “Outbreak” is currently defined by the California Department of Public Health (“CDPH”) 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 identify the name, number, occupation, and worksite of qualifying individuals; the employer’s business address; and the North American Industry Classification System code of the worksite where the qualifying individuals worked. The employer must continue to give notice to the local health department of any subsequent laboratory-confirmed cases at the worksite (the new law does not provide a reporting end-date). Does AB 685 apply to all employers? The new COVID-19 notice and reporting requirements apply to all private and public employers, with two exceptions:
Health facilities, as defined in Section 1250 of the Health and Safety Code, are exempt from reporting an “outbreak” within 48 hours as described above.
The notice requirements do not apply to exposures by employees whose regular duties include COVID-19 testing or screening, or who provide patient care to individuals who are known or suspected to have COVID-19, unless the “qualifying individual” is also an employee at the same worksite.
What should employers do?
Assess the impact of AB 685’s provisions on your specific business: Employers should consult with counsel to determine how the various provisions of the new law impact their specific operations. Notably, term “worksite” does not include buildings or floors that a qualifying individual does not enter, meaning the extent of required notice and reporting would depend on the configuration of an employers’ particular facility and operations. Assessing the scale of potential obligations under the new law is especially important given that AB 685 does not specify an end-date to the requirement for reporting “outbreaks” to local health authorities.
Develop an employee notice and compliance action plan: Since AB 685’s January 1, 2021 effective date is fast approaching, employers should use the interim period to consult with employment counsel to develop compliance strategies. Current efforts should focus on: (1) devising and refining procedures for notifying employees about potential COVID-19 worksite exposures, including working with counsel to develop notice forms and templates; (2) collating information regarding benefits potentially exposed employees may be eligible for under AB 685; and (3) developing written disinfection and safety protocols pursuant to CDC and local health agency guidelines.
Work with counsel to devise strategies for dealing with public inquiries: In light of AB 685 provisions requiring the CDPH and local public health agencies to make information on outbreaks available on their website, COVID-19 outbreaks may prompt attention from the media. Employers should consider potential communication with the media strategically, and should confer with counsel in the course of doing so.
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