AB 685 requires employers to provide notice of COVID-19 exposure

Earlier this month, Gov. Gavin Newsom signed a bill to impose notice, record keeping and safety obligations on employers in California related to COVID-19. Assembly Bill 685 requires employers to provide written notice and information regarding COVID-19-related benefits to employees who were potentially exposed to the virus at work.

The bill also authorizes Cal/OSHA's to issue orders prohibiting use (also known as stop work orders) for workplaces that pose an "imminent hazard" of COVID-19 exposure. It requires employers to post conspicuous notices of COVID-affected areas, operations or processes, and prohibit entry into those areas. Safety notices may not be removed until the area, operation or process is safe and appropriate safeguards and equipment are in place. Entry into COVID-affected areas is permitted to eliminate the dangerous condition. Such notices may not affect critical governmental functions, or delivery of power or water.

When to Provide Notice to Employees

Under AB 685, when an employer receives a notice of potential exposure to COVID-19, the employer is required to provide, within one business day, notice to employees, employee representatives (i.e., union representatives and attorneys), and employers of subcontracted employees. "Notice of potential exposure" means a notification to the employer or its representative from a public health official or licensed medical provider that the employee has a laboratory-confirmed case of COVID-19, a positive diagnosis from a licensed health care provider, an order to isolate from a public health official, or that the employee died from COVID-19. Notice of potential exposure may also come from the employee or their emergency contact, through the testing protocol of the employer, or from a subcontracted employer.

Employers are prohibited from retaliating against employees for disclosing their COVID-19 diagnosis, test result, or order to quarantine or isolate, and risk a complaint to the Division of Labor Standards Enforcement if they do so.

The bill orders that "An employer shall not require employees to disclose medical information unless otherwise required by law." Thus, employers should not request medical records from employees related to COVID-19 without first consulting with counsel.

Failure to comply with these provisions may result in a citation and a notice of civil penalty. While the citation and penalty are appealable, employers should be proactive and ensure that they have the appropriate policies and procedures in place so that they may appropriately respond to any "notice of exposure" and avoid citations and penalties altogether.

What Notice to Provide to Employees

Within one business day of receiving a notice of potential exposure, employers must provide written notice to all employees and employers of subcontracted employees present at the same worksite as the infected person within the infectious period that they may have been exposed to COVID-19. This notice must be provided in the manner that the employer normally uses to communicate employment information, including, but not limited to, written notice by personal service, email or text messages. This notice must in both English and the language understood by the majority of employees.

The employer must also provide written notice to the representative, if any, of its employees, and that notice must contain the same information required in an incident report in Cal/OSHA Form 300 injury and illness log unless the information inapplicable or unknown to the employer. Such notifications are not determinative of whether the illness is work-related.

Within one business day, the employer must also provide all employees who may have been exposed and their representative with information about COVID-19-related benefits that employees may be entitled to under federal, state or local laws, including, for example, workers' compensation, COVID leave, company sick leave, state-mandated leave, supplemental sick leave, negotiated leave provisions, and anti-retaliation and antidiscrimination protections.

Also within one business day, the employer must provide employees, their representative, and employers of subcontracted employees with notice of the disinfection and safety plan that the employer plans to implement and complete in accordance with guidelines from the Centers for Disease Control and Prevention.

Notices to other employees, their representatives, and employers of subcontractors should not include personally identifying information of any infected employees, such as their name, address, or any medical information. Rather, the notices should simply state that employees at the affected worksite may have been exposed to COVID-19, and provide appropriate information regarding benefits and leave. Providing personal information may result in legal complaints for privacy violations.

Finally, employers are required to maintain records of the written notices of exposure to employees, employee representatives and employers of subcontractors for three years.

When and What Notice to Provide to the State Department of Public Health

If the employer or its representative receives "notices of exposure" in sufficient number to meet the definition of a COVID-19 outbreak by the State Department of Public Health, then within 48 hours the employer must notify the local public health agency in the jurisdiction of the affected worksite. This notice must include the names, number, occupation and worksite of infected employees. The notice must also include the employer's business address, and NAICS code of the worksite where infected employees work. The employer must continue to give notice of any subsequent confirmed cases of COVID-19 at the worksite to the local health department.

In its revised Sept. 11 guidance regarding responding to COVID-19 in the workplace, the California Department of Public Health defined a "workplace outbreak" as three or more cases within two weeks involving individuals from different homes.

How to Prepare for and Respond to Citations

Employers should proactively develop policies and procedures to ensure that they are compliant with this new bill prior to Jan. 1. Specifically, employers should have a safety plan and sanitation protocols consistent with the CDC's guidance in place and implement them when they receive any notice of potential exposure. Additionally, employers should train employees and their supervisors how to respond to and prevent potential exposure to COVID-19. Employers should work with their counsel prepare notices of potential exposure to employees, employee representatives and subcontractor's employers so that they can issue these notices within one business day of any notice of potential exposure.

Unfortunately, employers who are not proactive now will be at a disadvantage once Cal/OSHA becomes involved. In fact, the bill provides that there is a "rebuttable presumption" that a "serious violation" exists if "there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation." While a violation is not per se "serious," Cal/OSHA may easily find that exposure to COVID-19 is a "serious violation." A violation may include a "serious exposure exceeding an established permissible exposure limit," or "unsafe or unhealthful" practices. "Serious physical harm" includes inpatient hospitalization, loss of any member of the body, serious permanent disfigurement, or impairment that causes a part of the body or function of an organ to be "permanently and significantly reduced in efficiency," and includes respiratory illnesses. Thus, there is a significant possibility that any violation related to COVID-19 exposure will be deemed "serious."

Fifteen days before issuing a citation for a serious violation, Cal/OSHA may send the employer a form describing the alleged violations and request information from the employer. Before issuing the citation, Cal/OSHA considers a variety of factors, including training provided to employees and their supervisors to prevent exposure to COVID-19, procedures for discovering exposure, controlling access to it and correcting any COVID-related hazards, supervision of exposed and potentially exposed employees, procedures for communicating the employer's health and safety rules and programs, and any information the employer provides. Employers should keep these factors in mind when developing COVID-19 policies and procedures.

In response to a notice of alleged violations, the employer may, among other things, explain the circumstances of the alleged violation, why the employer does not believe a violation to exist or be "serious," and why the employer believes its actions in response to the alleged violation were reasonable and rebut any presumption of a serious violation. To rebut this presumption, the employer may demonstrate that it did not know and could not know through reasonable diligence of the existence of the violation. To demonstrate "reasonable diligence," the employer may show that it took all steps a reasonable employer would take before an alleged violation occurred, especially considering the severity and likelihood of the expected harm, and that it took effective action to eliminate employee exposure to any hazard as soon as it was discovered.

While an employer is not barred from presenting information at a later hearing if the employer does not provide information in response to Cal/OSHA's inquiry and is not barred from providing different information at the hearing, the employer risks a negative inference being drawn against it by the trier of fact from any inconsistencies. Thus, when an employer receives inquiries from Cal/OSHA, they should work closely and carefully with their counsel to respond. 