California Assembly Bill 685 was recently passed and amends the California Labor Code to impose a number of new COVID-19 related reporting and other requirements.
The new law contains four important provisions, all of which go into effect January 1, 2021:
- The bill authorizes Cal/OSHA to shut down a business when, in its opinion, the business is exposing its workers to risk of infection from COVID-19 to the point the business is an imminent hazard to its employees.
- The bill requires an employer to provide notice to employees, subcontracted employees, and exclusive representatives of employees when it receives notice from one of its employees that the employee had potential exposure to COVID-19.
- The bill requires an employer to provide notice to the applicable local health agency if the employer is notified of a sufficient number of COVID-19 cases such that they meet the definition of a COVID-19 outbreak.
- The bill exempts Cal/OSHA, in a citation alleging a serious violation relating to COVID-19, from sending the employer the pre-citation standardized form which would otherwise allow the employer 15 days to respond to Cal/OSHA’s serious violation finding.
Each of these provisions are summarized below.
Cal/OSHA May Shut Down a Business If Employees Are at Risk of COVID-19 Infection
Currently, the law provides that Cal/OSHA can shut down a place of employment, machine, device, or other equipment that an employer uses if the foregoing constitutes an immediate hazard to employees.
The new law expands the above shut down authorization to “places of employment, operation, or process, or any part thereof,” if, in Cal/OSHA’s opinion, there is a risk of infection from COVID-19 such that it constitutes an imminent hazard to employees.
If such a determination is made, Cal/OSHA will provide a notice to the employer to be posted in a conspicuous place at the place of employment, of the area(s) to which the imminent hazard exists.
The shutdown provision is limited to the immediate area in which the imminent hazard exists and does not prohibit the operation or entry into other parts of the place of employment where the hazard does not exist. Thus, if only part of the place of employment is considered an imminent hazard, this does not prohibit operation of any other portions of the business not affected.
Employers Are Required to Provide Notice to Employees of Potential Exposure
Under the new law, an employer has certain obligations when it receives “notice of potential exposure” to COVID-19 at the worksite because of a “qualifying individual.” A “qualifying individual” is defined as a person who has any of the following:
- A laboratory-confirmed case of COVID-19;
- A positive COVID-19 diagnosis from a licensed health care provider;
- A COVID-19-related order to isolate provided by a public health official; or
- A death due to COVID-19.
"Notice of potential exposure” can be from:
- A public health official or licensed medical provider that an employee was exposed to a qualifying individual;
- An employee, or their emergency contact, that the employee is a qualifying individual; or
- The testing protocol of the employer that the employee is a qualifying individual.
In the case that an employer receives notice of potential exposure to COVID-19, the employer must provide written notice within one business day, in a manner in which the employer normally communicates employment-related information and in the language understood by the majority of employees to: (1) employees; (2) the employer(s) of any subcontracted employees; and (3) the exclusive representative (union) of the employees, who were on the premises at the same worksite as the qualifying individual.
The notice to employees must contain information regarding COVID-19-related benefits to which employees may be entitled under federal, state, or local law. Those benefits may include, but not be limited to:
- Workers’ compensation;
- Company sick leave;
- State-mandated sick leave; and
- Supplemental sick leave or negotiated leave provisions.
The above notice must also include anti-retaliation and anti-discrimination protections for the employee. In addition, the notice must include the disinfection and safety plan the employer plans to implement and complete per the federal Centers for Disease Control (CDC) guidelines. This latter disinfect and safety plan must also be provided to employers of subcontracted employees and any exclusive representative of employees.
Also, the notice to the exclusive representative of employees must contain the same information as would be required in a Cal/OSHA Form 300 Injury and Illness Log, regardless of whether the employer is required to maintain such a log, unless the information is inapplicable or unknown to the employer.
Notice to the Local Public Health Agency of COVID-19 Outbreak
Aside from the above notice requirements, if an employer is notified that a sufficient number of COVID-19 cases are present to constitute an “outbreak,” the employer has an obligation to provide notice of such to the local public health agency (LPHA) in the worksite’s geographical area. The California State Department of Public Health defines a “COVID-19” outbreak in the workplace as “three or more cases identified within two weeks in individuals of different households.” The notice to the LPHA must be provided within 48 hours of the notification of the outbreak and include:
- The names, number of, occupation, and worksite of the “qualifying individuals; and
- The business address and NAICS code of the worksite where the qualifying individuals work.
The LPHA notice requirement is a continuing one with regard to any subsequent qualifying individuals. Employers must maintain records of the written notifications of potential exposures to COVID-19 for a minimum of three years.
This reporting obligation does not apply to employees whose duties include:
- COVID-19 testing or screening;
- Providing direct patient care or treatment to individuals known to have tested positive for COVID-19; or
- Providing direct patient care or treatment to individuals who are persons under investigation or are in isolation or quarantine related to COVID-19.
The Notice of COVID-19 Outbreak also does not apply to a “health facility” as defined in Section 1250 of the California Health and Safety Code.
As noted above, this new law exempts Cal/OSHA, in a citation alleging a serious violation relating to COVID-19, from sending the employer the pre-citation standardized form. This is the form that normally gives the employer 15 days to rebut the presumption of seriousness. Instead, Cal/OSHA apparently will just issue the serious violation if it is COVID-19 related.
We will continue to keep you updated on any major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Richard S. Rosenberg
Katherine A. Hren
Ballard Rosenberg Golper & Savitt, LLP