As employers continue trying to navigate the many challenges of running a business during a pandemic, all California businesses should prepare themselves for the new COVID notice requirements heading their way. Following the passage of AB 685, employers have even more stringent notice requirements related to possible exposure to COVID-19 and reporting of workplace outbreaks to local health departments.
Effective January 1, 2021, Labor Code section 6409.6(a) requires an employer who receives “notice of potential exposure” to COVID-19 to provide a written notice to all employees, and the employers of 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 within one business day.*
The “worksite” is defined as “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” Further, “[i]n a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.” Although this definition may limit the number of notice recipients for some employers, an employer with hundreds of employees in a large warehouse or store may have to notify more employees than an employer that occupies multiple floors in a building. The term “worksite” “does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter.”
The Notice must also include 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 rights
- COVID-19-related leave
- Company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave
- Antiretaliation and antidiscrimination protections
- Disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal CDC must also be included
- To preserve employee privacy, the notice to employees should be provided in a manner that does not reveal the identity of the qualifying individual
The Written notice may include, 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 sending, but must be in a manner the employer normally uses to communicate employment-related information. The notice shall be in both English and the language understood by the majority of the employees.
The statute requires that this information be provided to the exclusive labor representative, if any. Employers must keep copies of all notices provided for at least three years.
Reporting Outbreak to Local Health Departments
Under Labor Code section 6409.6(b), employers must also notify the local public health department within 48 hours of notice of a COVID-19 “outbreak” (as defined by the CDPH).
As of October 19, 2020, the California Department of Public Health
Defined a “COVID-19 outbreak” for AB 685 as having at three or more laboratory-confirmed cases of COVID-19 among workers at the same worksite within a two-week period.
The notice to local public health departments must identify the number of qualifying individuals, the name, occupation, and worksite for those individuals, the employer’s business address, and the NAICS code of the worksite. Following the reporting of an outbreak, the employer must continue to give notice to the local health department of any subsequent laboratory-confirmed cases at the worksite
Section 6409.6(b) also requires the CDPH to make specified information on outbreaks publicly available on its website. Local public health departments and Cal/OSHA must also provide a link to this page on their websites.
Finally, AB 685 provides Cal/OSHA with the power to shut down a business if it believes the risk of COVID-19 is too high.
*Note that on November 20, 2020, emergency regulations to be enforced by Cal/OSHA were filed with the Office of Administrative Law, which has ten days to review. Cook Brown will publish additional guidance about those temporary standards, including those provisions that preempt some of the requirements of AB 685 in the coming week.
According to the California Department of Public Health (CDPH), for purposes of AB 685, the infectious period is defined as:
For an individual who develops symptoms, the infectious period for COVID-19 begins 2 days before they first develop symptoms. The infectious period ends when the following criteria are met: 10 days have passed since symptoms first appeared, AND at least 24 hours have passed with no fever (without use of fever-reducing medications), AND other symptoms have improved.
For an individual who tests positive but never develops symptoms, the infectious period for COVID-19 begins 2 days before the specimen for their first positive COVID-19 test was collected. The infectious period ends 10 days after the specimen for their first positive COVID-19 test was collected.