Hunton Employment & Labor Perspectives

In response to the ongoing spread of COVID-19 in California, Governor Gavin Newsom signed AB 685.  In short, AB 685 imposes uniform notice requirements on California employers dealing with a potential COVID-19 exposure or outbreak, requires employers to maintain records of COVID-19 notices, and empowers the Division of Occupational Health and Safety (“Cal OSHA”) to close down worksites where the risk of exposure to COVID-19 constitutes an imminent hazard to employees.

Notice Requirements

Potential COVID-19 Exposure

Within one business day of receipt of notice of potential COVID-19 exposure, an employer must:

• Provide written notice of potential exposure and the disinfection and safety plan the employer plans to implement and complete per Centers for Disease Control and Prevention guidelines to all employees and employers of subcontracted employees working at the same worksite as any individual who has tested positive for COVID-19, been ordered to isolate due to COVID-19, or died due to COVID-19.
  • While AB 685 does not require an employer to notify non-employees, employers should considering notifying others who worked on the premises during the infectious period (as defined by the California Department of Public Health).
• Provide all employees who may have been exposed with information pertaining to applicable benefits, such as workers’ compensation benefits, COVID-19-related leave, sick leave, and anti-retaliation and anti-discrimination protections.

Written notice must be provided in a manner the employer normally uses to communicate employment-related information.  This includes, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of transmission.  The written notice must be in both English and the language understood by the majority of the employer’s employees.

When drafting the written notice, employers should be mindful of protecting the infected individual’s privacy and sensitive personal and medical information.

COVID-19 Outbreak

Employers notified of a COVID-19 outbreak (as defined by the California Department of Public Health) have additional obligations.  The employer must report the business address and NAICS (North American Industry Classification System) code of the worksite where the individual(s) who has tested positive for COVID-19, been ordered to isolate due to COVID-19, or died due to COVID-19 work.  Additionally, within 48 hours of notice, the employer must:

• Notify the local public health agency in the jurisdiction of the worksite of the employees who have died due to COVID-19 of their names, the number of employees who have died, their occupation, and the address of their worksite.

An employer that receives notice of an outbreak has a continuing obligation to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

Record-Keeping Requirements

Employers must maintain records of written notices of potential COVID-19 exposures for at least three years.  Although the record-keeping requirement does not appear to apply to COVID-19-outbreak reporting and notice requirements, employers should also consider retaining those records as well.

Cal OSHA’s Enforcement Powers

If Cal OSHA determines that a worksite has exposed employees to a risk of infection of COVID-19 such that it constitutes an imminent hazard, Cal OSHA may prohibit entry into or use of the immediate area where the imminent hazard exists and require the employer to post a notice at the worksite.

AB 685 goes into effect on January 1, 2021.  Employers still have time to prepare and should use this time to review and update any existing COVID-19 policies to ensure compliance with the new law and communicate the new requirements to HR and worksite managers.