The COVID-19 pandemic has created historic challenges for business owners and employers around the country, including ever-changing federal, state, and local laws intended to slow the spread of the virus. On September 17, 2020, California doubled down on its effort to track and slow the spread of COVID-19 among non-remote employees with the new law, AB 685, which enhances employer notification requirements.
The new law, went into effect on January 1, 2021, establishing mandatory notice requirements for employers to notify employees about potential COVID-19 exposure at the workplace once the employer has been notified of a "qualifying individual." The requirements include providing written notice to all employees who were at the worksite within the infectious period who may have been exposed to the virus. The law also enhances employer reporting requirements of any COVID-19 "outbreak" to local health authorities.
The law further provides the California Division of Occupational Safety and Health ("Cal-OSHA") expanded authority to enforce these requirements. Normally, if Cal-OSHA intends to issue a serious citation, they must first provide notice of intent to the employer and allow the employer 15 days to respond. AB 685 eliminates this requirement for COVID-19-related issues, allowing Cal-OSHA to issue a citation immediately with no warning to employers.
What is Considered Notice of Potential Exposure?
The new law requires employers to provide notice to their employees whenever the employer receives "notice of potential exposure" from a "qualifying individual." Notice of potential exposure is any one of the following:
- Notification to the employer or its representative from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite
- Notification to the employer or its representative from an employee or employee's emergency contact that the employee is a qualifying individual
- Notification through the testing protocol of the employer that the employee is a qualifying individual
- Notification to an employer or its representative from a subcontracted employer that a qualifying individual was on the worksite of the employer receiving notification
Who is a Qualifying Individual?
The new law defines a "qualifying individual" as any person with any of the following:
- 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
- Death 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 Kind of Notice Do Employers Need to Provide Their Employees?
The new notice requires employers to take the following actions within one business day of notice of a "potential exposure" based on a positive confirmed case of COVID-19 in the workplace:
- Provide written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19. Although the written notice requirement applies only to employees and subcontracted employees, employers should also consider notifying any identifiable third parties who were at the worksite during the infectious period.
- Provide written notice to employee representatives, including unions and sometimes attorneys, who may represent employees.
- Provide written notice to employees and/or employee representatives regarding COVID-19-related benefits that employee(s) may receive, including workers' compensation benefits, COVID leave, paid sick leave, and the company's anti-discrimination, anti-harassment, and anti-retaliation policies; and
- Provide notice to employees regarding the company's disinfection protocols and safety plan to eliminate any further exposures, per CDC guidelines.
Written notice may include personal service, e-mail, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
How Does This Law Change How Employers Report COVID-19 Exposures to Health Authorities?
The new law requires an employer that has met the definition of a COVID-19 outbreak, to report this information to the local public health agency in their worksite jurisdiction within 48 hours of learning of the outbreak. An outbreak as defined by the State Department of Public Health is three or more lab-confirmed cases of COVID-19 among employees living in different households, within a two-week period. Note: this definition of a COVID-19 outbreak differs from the definition under the workers' compensation presumption rule.
AB 685 went into effect on January 1, 2021, giving employers some room to prepare for its new requirements. Considering that employee notices must be provided within one day, it is critical that employers have an efficient notice process in place. Employers should carefully review AB 685 in detail and revise their existing procedures in order to ensure they are fully compliant with the new notice and reporting requirements.