Effective January 1, 2021, California employers must report to their workforces instances in which employees may have been exposed to COVID-19 and to local public health departments any “outbreak” of three or more employees having COVID-19. The requirements are extensive and the potential liability for violations is great. Employers should begin to prepare early to comply with AB 685, signed into law by Governor Gavin Newsom on September 17, 2020.
Employers must Notify Employees of Potential COVID-19 Exposure
Under AB 685, where an employer receives “notice of potential exposure” of an employee to COVID-19, the employer is obligated to notify employees in writing within one business day of extensive information, explained below.
What Triggers the Employer’s Obligations
Understanding the new obligations requires first understanding “qualifying individual” as used in the new legislation. A “qualifying individual” under AB 685 means any person who (1) has a laboratory-confirmed case of COVID-19 or a positive COVID-19 diagnosis from a licensed health care provider; (2) is under a COVID-19-related order to isolate issued by a public health official; or (3) died due to COVID-19.
“Notice of potential exposure,” in turn, means notice to the employer of any of the following occurring:
— An employee was exposed to a qualifying individual at the worksite (apparently, regardless of whether the qualifying individual was there as a customer, vendor, visitor or otherwise). In order to constitute “notice of potential exposure” on this basis, the employer must have received this information from a public health official or licensed medical provider.
— An employee is a qualifying individual, where the employer received this information from the employee, their emergency contact or through the employer’s testing protocol.
— A qualifying individual (such as a subcontracted worker) was at the worksite, where the employer received this information from a subcontracted employer.
Thus, zooming upward to a flying high perspective, “notice of potential exposure” means, broadly speaking, the employer receiving notice that an employee has or had COVID-19, an employee was exposed to someone on the worksite suffering COVID-19 or that a subcontracted worker or other person with COVID-19 was onsite.
The Employer’s Obligations
Where the employer receives notice of potential exposure, the employer must — within one business day — take all of the following actions:
— Notify “all employees,” and the employers of subcontracted employees, who were at the worksite with the qualifying individual within the infectious period that they may have been exposed to COVID-19. The employer’s notice must be in writing and in both English and the language understood by the majority of the employees, if not English. The notice must be given in a manner the employer normally uses to communicate employment-related information. The notice may be given, for example, by email, text message or personal service, so long as it can be reasonably expected that employees will receive the notice within one business day of the employer sending it.
— Notify any union representative of the same information.
— Give all employees who may have been exposed and their union representative, if any, information regarding COVID-19-related benefits available under federal, state or local law, including workers’ compensation, leave rights, paid sick leave and supplemental paid sick leave rights, negotiated leave provisions and anti-retaliation and anti-discrimination protections for employees.
— And finally, notify all employees, the employers of subcontracted employees and any union representative of the disinfection and safety plan the employer plans to implement and perform pursuant to Centers for Disease Control guidelines.
Obviously, advance preparation is necessary for employers to comply with these requirements. Employers must compile a great body of information, possibly have information translated from English into the language used by most of the employees and be prepared to convey the information to a great number of people within one business day of learning they must give notice. One aspect of the preparation, of course, is that employers must ensure they have current contact information – email addresses, cell phone numbers and addresses – for all of those to whom they may need to give notice, including all employees.
Costly Civil Penalties
AB 685 authorizes the California Division of Occupational Safety and Health to award civil penalties against employers who violate the notice requirements in sums of up to $12,471 per violation where the violation is not deemed “serious,” up to $25,000 for a serious violation and up to $124,709 where a violation is found to be willful or repeated.
Notice Requirements Where an “Outbreak” Occurs in the Worksite
Where an employer learns of the number of cases that meet the definition of an “outbreak” in a workplace, the employer must – within 48 hours — notify the local public health agency of certain information. On September 18, 2020, the day after Governor Newsom signed AB 685, the California Department of Public Health updated guidance that includes its definition of “outbreak.” For purposes of AB 685, the Department defines an “outbreak” as three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period. This is the controlling definition of “outbreak” for employers at this time, regardless of the size of the workforce, the size or characteristics of the worksite or other factors.
In the event of an outbreak, the employer must notify the local public health agency in the area of the subject worksite of the address and NAICS code of the worksite. If any subsequent laboratory-confirmed cases of COVID-19 arise at the worksite, the employer must notify the local agency. Where the outbreak includes a COVID-19 fatality, the employer must also give the local public health agency the names, number, occupation and worksite of the deceased employees.
A helpful guide from the California Department of Public updated this month for employers preparing for and responding to outbreaks may be found here.
Privacy Obligations to Employees
The new provisions include privacy protections for employees. The protections make it unlawful for employers to require employees to disclose medical information unless otherwise required by law. In addition, the legislation provides that no personally identifiable employee information may be made public or posted nor subject to a California Public Records Act request, posted on a public internet site or shared with any federal agency or any state agency other than the State Department of Public Health.
The new legislation prohibits employers from retaliating against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate. Employees who feel they have suffered retaliation may file complaints with the California Labor Commissioner and, if they prevail, be awarded a civil penalty of $10,000, reinstatement, lost wages and attorney’s fees under Labor Code sections 98.6 and 98.7.
Express Authority to Shut Down Business Operations that Pose COVID-19 Risk
AB 685 grants the California Division of Occupational Safety and Health express authority to close any business “operation or process,” and bar “entry into such place of employment,” where the Division finds that “a place of employment, operation or process” exposes workers to a risk of Coronavirus infection constituting “an imminent hazard to employees.” Such actions are to be “limited to the immediate area in which the imminent hazard exists.”
Recommended Actions to Consider
Now, only about three months from AB 685 becoming effective, employers may wish to consider actions including:
- Compile and translate, if needed, the information to be given to employees, union representatives and any employers of subcontracted employees in the event you, as the employer, are given notice of potential exposure.
- Give thought to the means by which you will give notice to “all employees” and others if you receive notice of potential exposure – email, text, etc. Ensure that you have and maintain current contact information for everyone to whom you may need to give notice.
- Prepare a written action plan to follow in the event of an outbreak or notice of potential exposure is received. The plan should make clear who is responsible for performing each action item and the timeline. Brief all responsible personnel fully on their role in advance.
- Tirelessly enforce workplace Coronavirus prevention protocols. The best strategy is to do what you can to prevent circumstances arising in which you must comply with the new notice requirements.