By Heather Sager, Jill Ripke, and Matthew Goldberg

On September 17, 2020, as part of a trio of new COVID-19 protections for employees, California Governor Gavin Newsom signed AB 685, the text of which is available here. AB 685 requires employers to provide written notice to employees and employers of subcontractors of all potential exposure to COVID-19 within one business day of receiving notice of the potential exposure and notify the local public health agency of outbreaks. In addition, the law enhances Cal/OSHA’s enforcement powers, including the ability to shutter businesses experiencing COVID-19 outbreaks. In a small bit of relief for employers, the law does not take effect until January 1, 2021. The California Department of Industrial Relations has also published some initial FAQs, available here.

Employee Notification

Although many employers have already been notifying workers of potential COVID-19 exposure, the law now mandates that all employers provide a written “notice of potential exposure” to all employees and to employers of subcontracted employees (collectively, “On-Site Staff”) who were on the premises at the same Worksite as a “Qualifying Individual” who was infected with COVID-19 or who was subject to a COVID-19–related quarantine order within the infectious period, currently defined as 14 days by the California Department of Health.

“Notice of Potential Exposure” is defined as the following: (A) notification to the employer or representative from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite; (B) notification to the employer or representative from an employee, or their emergency contact, that the employee is a Qualifying Individual; (C) notification through the testing protocol of the employer that the employee is a Qualifying Individual; or (D) notification to an employer or representative from a subcontracted employer that a Qualifying Individual was on the worksite of the employer receiving notification.

“Qualifying Individual” means any person who has any of the following: (A) a laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health; (B) a positive COVID-19 diagnosis from a licensed health care provider; (C) a COVID-19–related order to isolate provided by a public health official; or (D) died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county. Please note that a Qualifying Individual need not be an employee or a subcontractor.

“Worksite” as used in the statute means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a Qualifying Individual did not enter. In a multi-Worksite environment, the employer need only notify employees who were at the same Worksite as the Qualifying Individual.

The written notice must be provided in the manner the employer normally uses to communicate employment-related information, including but 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.

The notification to On-Site Staff should include the following: (1) a summary of benefits employees may be entitled to under applicable law should they become infected and (2) the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control. The written notice should not disclose the identity of the infected individual(s).

An employer must also maintain records of any such notifications for three years.  Failure to abide by these notification provisions may result in a citation and a civil penalty. In tracking information, employers will need to ensure that they protect individual privacy rights and comply with notification standards under the California Consumer Protection Act. We also anticipate issues arising due to the lag between when COVID-19 tests are administered and when the results are received.

Required “Outbreak” Disclosure to Cal/OSHA

The California Department of Public Health defines an “Outbreak” in non-healthcare or non-residential congregate setting workplaces as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period.

Within 48 hours of learning of an Outbreak, employers must notify the local public health agencies in the jurisdiction of the Worksite of the names, phone numbers, occupations, and Worksite of those who may have COVID-19 or who are under a COVID-19 isolation order from a public health official. The statute is not clear whether the reporting requirement extends beyond employees to independent contractors and vendors. Employers also must report the business address and NAICS industry code of the Worksite where the infected or quarantined individuals work. An employer that has an Outbreak subject to these provisions must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the Worksite. Neither the statute nor the FAQs provide any guidance on how long the reporting requirement must continue. The Outbreak disclosure requirement does not apply to Health Care Facilities, as defined in the Heath and Safety Code (including hospitals, rehabilitation centers, and nursing homes).

Cal/OSHA Enforcement

Cal/OSHA can now shut down an entire Worksite or specific Worksite area that it concludes exposes employees to an “imminent hazard” related to COVID-19 infection/exposure. Cal/OSHA also can issue citations without soliciting information from an employer and without prior notice.

Next Steps

Employers with operations in California should consult legal counsel in the coming weeks to craft a legally compliant approach to identify On-Site Staff who may have been exposed to COVID-19 during the infectious period and protocols to notify them of exposure and/or public health agencies of an Outbreak.