Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated October 21, 2020
On September 17, 2020, California doubled down on its efforts to keep non-remote employees safe from COVID-19 exposure. Governor Newsom signed AB 685, new legislation that allows the state to track COVID-19 cases in the workplace more closely. AB 685 expands Cal/OSHA’s authority to issue Orders Prohibiting Use (OPU), otherwise known as Stop Work Orders, for workplaces that pose a risk of an “imminent hazard” relating to COVID-19, i.e., hazards threatening immediate and serious physical harm. The law also prescribes exhaustive notice requirements in the event of a COVID-19 exposure in the workplace, which includes providing written notice to “all employees” who were at the worksite within the infectious period who may have been exposed to the virus. AB 685 also enhances reporting requirements to local health authorities in the event of a COVID-19 outbreak in the worksite. The law takes effect on January 1, 2021.
As a second measure, California joins other states like Virginia and Oregon in advancing an emergency rule. At the September 17, 2020 Occupational Standards Health and Safety Board meeting, the six-member Board unanimously directed its staff to draft an emergency temporary rule and return the proposed regulation to the Board by November 19, 2020 for approval. Employers should prepare for these changes.
What Kind Of Notice Do I Need To Provide My Employees?
The new notice requires employers to take these actions within one business day of a “potential exposure” based on a positive confirmed case of COVID-19 in the workplace:
- Provide written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19. Although the written notice requirement applies only to employees and subcontracted employees, employers should also consider notifying any identifiable third parties who were at the worksite during the infectious period.
- Provide written notice to employee representatives, including unions and sometimes attorneys, who may represent employees.
- Provide written notice to employees and/or employee representatives regarding COVID-19-related benefits that employee(s) may receive, including workers’ compensation benefits, COVID leave, paid sick leave, and the company’s anti-discrimination, anti-harassment, and anti-retaliation policies; and
- Provide notice to employees regarding the company’s disinfection protocols and safety plan to eliminate any further exposures, per CDC guidelines.
Written notice may include, but is not limited to, personal service, e-mail, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
How Does This Law Change How We Report COVID-19 Exposures?
The new law requires an employer that has a sufficient number of COVID-19 positive cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, to report prescribed information to the local public health agency in the jurisdiction of the worksite within 48 hours of learning of the outbreak. The definition of a COVID-19 outbreak will also be informed by the local health authority, which differs from the definition under the workers’ compensation presumption rule.
In addition, for COVID-19-related fatalities, the employer must provide notification to the local health department of the: names, numbers, occupation, and worksite of employees who died due to a COVID-19 exposure. An employer shall also report the business address and North American Industry Classification System (NAICS) code of the worksite where the COVID-19-positive employee worked. An employer with an outbreak subject to this section shall continue to provide notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
How Does This Law Change The Normal Cal/OSHA Process?
The new law fast tracks the timeline for issuing serious citations. Usually, whenever Cal/OSHA intends to issue a serious citation, the agency has to provide a “1BY” notice, whereby the employer is afforded notice by the agency of its intent to issue a “serious” citation, together with the specific safety orders and allegations to support those types of citations. Employers, in turn, are provided 15 days to provide additional evidence to support their defense, which could potentially inform whether Cal/OSHA will issue serious citations. Without this step, employers do not have the opportunity to “preview” Cal/OSHA’s serious allegations, to submit evidence and proof to address those allegations, or to have any meaningful dialogue with the Division before issuance of the citations. This means employers must closely monitor the statute of limitations to ensure that once they receive a citation, they must immediately evaluate the classifications, allegations and proposed penalties and determine whether an appeal is necessary.
AB 685’s removal of the 1BY notice period for COVID-related hazards also means employers should be careful to implement their COVID policies and produce documents to Cal/OSHA during an investigation, because they will not have an opportunity to raise legal defenses after a document request is complete until after the Division issues the serious citations.
How Will The Emergency Rule Change My Return-To-Work Process?
Once promulgated, the new rule will probably require employers to create a COVID-19 “action plan” that will identify the workplace’s risks and determine how to control exposure through such measures as improving ventilation, social distancing and protective gear. Up to this point, Cal/OSHA has issued citations under the Injury and Illness Prevention Standard, a “catch-all” safety order that applies to a workplace hazard not covered by any specific safety order. It is likely this COVID-specific rule will require employers to draft and implement a separate COVID-19 Pandemic Plan that addresses all COVID-19 exposures, and identifies the employer’s manner in which to correct those exposures and how the employer will enforce its procedures, provide training, conduct inspections, and review its processes for effectiveness. The rule might also establish requirements for employers to notify workers of confirmed or suspected COVID-19 cases similar to AB 685, mandate reporting to Cal/OSHA of cases that do not result in hospitalizations, and add practices to encourage potentially infected employees to stay home.
New Guidance and Definitions Issued by the California Department of Public Health (October 16, 2020)
The California Department of Health recently provided guidance and definitions on AB 685. Of note, the Department defined a COVID-19 outbreak in a non-healthcare workplace as having at least three COVID-19 cases among workers at the same worksite within a 14-day period.
In addition, the recently provided definitions specify the infectious period for individuals. For individuals with symptoms, the infectious period for COVID-19 begins 2 days before first development of symptoms and 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 individuals who test positive, but without symptoms, the infectious period for COVID-19 begins 2 days before the specimen for their first positive COVID-19 test was collected and ends 10 days after the specimen for their first positive COVID-19 test was collected.
The Department further clarified the meaning of a laboratory-confirmed case of COVID-19 as a positive result on any viral test for COVID-19. This clarification now resolves previous uncertainty as to whether a presumptive positive COVID-19 test (the individual has tested positive for the virus at a local or state level, but the results have not yet been confirmed by the CDC) would be considered a laboratory-confirmed case.
While the rule is not yet in effect, employers are strongly encouraged to consult counsel whenever (1) there is a positive confirmed case of COVID-19 for guidance on the proper notification/contact tracing requirements, and (2) whenever Cal/OSHA contacts them or if an inspector appears at the employer’s worksite.