On September 17, 2020, Governor Newsom signed Assembly Bill 685 (“AB 685”). This bill imposes new COVID-19 reporting requirements on public entity employers, including cities, counties, school districts, county offices of education, community college districts, law enforcement agencies, transit agencies, water districts, and other special districts (“public employers”), starting January 1, 2021.
AB 685 also expands the authority of the Division of Occupational Safety and Health of California (“Cal/OSHA”) with respect to workplace COVID-19 cases. This law shall remain in effect for three years (through December 31, 2023).
Reporting Requirements for Notifying Employees
- AB 685 requires public employers that receive “a notice of potential exposure” to COVID19 to take the following actions within one business day of receiving this notice:
- Provide a written notice to all employees, and the employers of any subcontracted employees, who were on the premises at the same “worksite” as the “qualifying individual” within the “infectious period” that they may have been exposed to COVID-19 in a manner that the public employer normally uses to communicate employment-related information.
- Provide a written notice to the exclusive representative (e.g. bargaining units and/or union representative), if any, of employees described above.
- Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19- related leave, public employer-provided sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and antidiscrimination protections of the employee.
- Notify all employees, the employers of subcontracted employees, and the exclusive representative, if any, on the disinfection and safety plan that the public employer plans to implement and complete per the guidelines of the federal Centers for Disease Control (“CDC”).
What is a “worksite” for purposes of AB 685?
A “worksite” is defined as the building, store, facility, agricultural field, or other location where an employee worked during the infectious period. It does not apply to buildings, floors, or other locations of the public employer that a “qualified individual” did not enter
Consequently, in a multi-worksite environment, the term “worksite” is limited to those buildings that the “qualified individual” entered during the “infectious period.” In that case, the public employer would only need to notify employees in those buildings that the “qualified individual” entered.
Who is a “qualifying individual” for purposes of AB 685?
A“qualifying individual” means any person who has:
- A laboratory-confirmed case of COVID-19, as defined by the California Department of Public Health (“CDPH”);
- Apositive COVID-19 diagnosis from a licensed health care provider;
- ACOVID-19-related order to isolate provided by a public health official; or
- Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.
COVID-19 Exposure Notification
What is the “infectious period” for purposes of AB 685?
The “infectious period” is defined as the time a COVID-19-positive individual is infectious, as defined by the CDPH. According to the latest guidance from the CDC and the CDPH, the “infectious period” is 10 days.
What is a “notice of potential exposure” for purposes of AB 685?
A public employer is considered to have “notice of potential exposure” to COVID-19 at a worksite when the public employer receives notice from:
- A public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite;
- An employee, or their emergency contact, that the employee is a “qualifying individual”;
- The results of the public employer’s testing protocols that the employee is a “qualifying individual”; or
- A subcontracted employer that a “qualifying individual” was on the worksite of the public employer.
How should public employers provide notice of potential exposure?
Public employers are required to provide the notice in a manner that the public employer normally uses to communicate employment-related information to employees, provided that the notice can be reasonably anticipated to be received by the employee within one business day. This can include the following:
- Hand-delivering the notice to each employee at the worksite;
- Sending the notice to employees via email; and
- Sending the notice to employees via text message.
Finally, the notice must be in both English and the language understood by the majority of the employees.
What information should be included in the notice?
The notice must contain the following elements:
- A statement advising employees that they may have been exposed to COVID-19 at the workplace (without identifying the sick employee);
- Information regarding COVID-19- related benefits to which the employee may be entitled under applicable federal, state, or local laws including, but not limited to, workers’ compensation and COVID19-related leave;
- Information regarding options for exposed employees, including public employer-provided sick leave, other federal or state-mandated leave, supplemental sick leave, or negotiated leave provisions;
- Information regarding the antiretaliation and antidiscrimination protections of the employee; and
- Information regarding the disinfection and safety plan that the public employer plans to implement and complete per the guidelines of the CDC.
This notice must be provided not only to the affected employees, but also to:
- The union representative (if any of the affected employees are part of a represented bargaining unit); and
- The owner of any entity with whom the public employer subcontracts (if any of the affected employees are employed by a subcontractor).
Additional Reporting Requirements for Outbreaks
In addition, public employers are also required to notify their local public health department if a COVID-19 outbreak (as currently defined by the CDPH) occurs at a worksite. This notice must be provided within 48 hours of the public employer learning of the outbreak, and must contain the following information:
- The number of COVID-19 cases at the worksite;
- The names and occupations of the qualifying individuals;
- The address of the worksite; and
- Any other pertinent information.
Once an outbreak at a worksite is reported, the public employer is required to continue to notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite
AB 685 exempts health facilities, as defined by California Health and Safety Code section 1250, from this reporting requirement.
Is there a requirement to notify the general public?
The statute does not require public employers to notify members of the general public (who happened to be at the worksite during the infectious period) of the potential exposure to COVID-19. While not required, it is recommended that public employers consider notifying any identifiable third parties who were at the worksite during the infectious period.
Cal/OSHA Enforcement to Shut Down Operations that are an Imminent Hazard
AB 685 authorizes Cal/OSHAto take any of the following actions when it determines that employees are exposed to risk of a COVID-19 infection so as to constitute an imminent hazard:
- Prohibit entry or access to a worksite;
- Prohibit performance of an operation or process at the worksite; or
- Require posting of an imminent hazard notice at the worksite.
This prohibition is limited to the immediate area in which the imminent hazard exists
AB 685 provides an exemption from Cal/OSHA’s enforcement authority for certain government operations. Specifically, Cal/OSHA may not take any of the actions listed above if it would materially interrupt the performance of critical government functions essential to ensuring public health and safety functions, or the delivery of electrical power or water. AB 685 does not explain which government functions are “critical,” which are “essential to ensuring public health and safety functions,” or which are “essential” to “delivery of electrical power or water.” However, it is likely that this exemption would include sworn law enforcement personnel, fire fighters, water treatment operators, and other public employees facilitating the provision of electrical power or water to the general public. This section will be repealed on January 1, 2023.
By Atkinson, Andelson, Loya, Ruud & Romo, www.aairr.com