Friday, November 20, 2020

AB 685: New COVID-19 Reporting Obligations for Employers

On September 17, 2020, Governor Newsom signed into law AB 685, which imposes new notice obligations on employers if an employee is exposed to COVID-19. The bill becomes effective on January 1, 2021 and will sunset on January 1, 2023. The provisions in the bill apply to both public and private employers with some minor exceptions as explained below. Below are some commonly asked questions and answers related to AB 685.

What is AB 685?

The law: (1) requires employers to notify employees who may have been exposed to COVID-19; (2) requires employers to report workplace “outbreaks” to the local health department; (3) requires the California Department of Public Health (CDPH) to publicly report information on workplace outbreaks; and (4) authorizes Cal/OSHA to enforce COVID-19 hazards as an imminent hazard to provide immediate protections for workers.

What Kind of Information are Employers Required to Provide Their Employees?

Once an employer receives “notice of a potential exposure” to COVID-19 in the workplace, the employer must:

(1)   Provide written notice to its employees and the employer of subcontracted workers that they may have been exposed to COVID-19. The employer can inform workers of the dates that an individual with COVID-19 was at the worksite but should not share information that could identify the affected individual. The employer must also provide this notice to the exclusive labor representative of an employee, if any.

(2)   Provide information to employees about COVID-19 benefits under federal, state, or local laws. This includes workers’ compensation, company sick leave, state federal or local-mandated leave, supplemental sick leave, negotiated leave, and anti-discrimination as well as anti-retaliation protections. 

(3)   Inform employees and the employer of subcontracted workers of the disinfection and safety plan for the worksite, in accordance with CDC guidelines. This information must also be provided to the exclusive labor representative, if any.

NOTE: the phrase “notice of a potential exposure” is a defined term under AB 685 – please see Section 4 (d)(3)(A)-(D). 

How and When Should Workers be Notified?

Employers must provide written notice to their employees and the employer of subcontracted workers within 1 business day of receiving notification of potential exposure. This written notice can be hand-delivered, sent by email, or via text message and should be in English as well as any other language understood by the majority of employees. Said notice must also be provided to the exclusive labor representative, if any, within 1 business day.

Which Workers Must Receive the Notice?

All employees and employers of any subcontracted employees who were at the same worksite as the worker diagnosed with COVID-19 during their infectious period must be notified. The term “infectious period” means the time a COVID-19 positive individual is infectious as defined by the State Department of Public Health.

When are Employers Required to Report COVID-19 Cases to the Local Health Department?

Employers must report COVID-19 “outbreaks” within 48 hours to the local health department. Outbreaks are defined as 3 or more COVID-19 cases among workers at the same worksite within a 14-day period. Employers must continue to notify the local health department of additional COVID-19 cases identified among workers at the worksite. 

The reporting obligation to the local health department does not apply to a “health facility” as defined in Section 1250 of the California Health and Safety Code (which are largely those that provide 24-hour care). 

What Kind of Information Needs to be Reported to the Local Health Department?

(1)   Information about the worksite – name of company/institution; business address; and North American Industry Classification Statement (NAICS) industry code.

(2)   Names and occupations of workers with COVID-19.

(3)   Additional information requested by the local health department as part of their investigation.

Who is Deemed a COVID-19 Case?

Under AB 685, a COVID-19 case is someone who:

(1)   Has a positive viral test for COVID-19;

(2)   Is diagnosed with COVID-19 by a licensed health care provider;

(3)   Is ordered to isolate for COVID-19 by a public health official; or

(4)   Dies due to COVID-19, as determined by a public health department.

If an employer is notified of individual(s) in the workplace who meets any of the above-stated criteria, then it must notify workers and the local health department as described above.

Which Employers Have to Follow AB 685?

All public and private employers in California must follow AB 685 except:

·        “Health facilities” as defined in Section 1250 of the California Health and Safety Code (which are largely those that provide 24-hour care) are not subject AB 685’s requirements for reporting outbreaks to local health departments, but they must continue to follow existing reporting requirements. All other AB 685 requirements apply to health facilities, including notifying employees of potential exposure to COVID-19 and benefits information. 

·        The notice and reporting requirements of AB 685 do not apply to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID-19, are persons under investigation, or are in quarantine or isolation related to COVID-19, unless the person with the COVID-19 case is an employee at the same worksite

What is an Employer’s Record Keeping Obligations?

An employer must maintain records of the written notifications required under this law for a period of at least 3 years.

What Does AB 685 Authorize Cal/OSHA to do?

AB 685 authorizes Cal-OSHA to:

·        Issue an Order Prohibiting Use to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19.

·        Cite or fine employers for serious violations related to COVID-19 without having to provide 15-days’ notice.

·        Cite or fine employers for violations of AB 685 worker notification provisions.

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.

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