CAL/OSHA Imposes New Notice and Reporting Obligations for COVID-19 Workplace Exposure
From Navigating COVID-19
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On Sept. 17, 2020 Gov. Gavin Newsom signed Assembly Bill 685 imposing exhaustive notice requirements on employers in the event of a COVID-19 exposure in their workplace. The law also enhances reporting requirements to local health authorities, and expands Cal/OSHA’s ability to issue serious violation citations. The employee notice provisions and expansion of Cal/OSHA's ability to issue citations become effective Jan. 1, 2021. The employer's requirement to notify local health departments of a coronavirus outbreak is effective now. Read the bill here.
The purpose of the new law is to better track and trace workplace exposure, use the reported information to better address health-care disparities in the Latino, Black and Asian Pacific Islander communities, clarify employers’ reporting requirements and better track and trace positive COVID-19 diagnoses.
The requirements imposed by AB 685 are applicable to employers regardless of whether the COVID-19 case was contracted in the workplace. They are in addition to Cal/OSHA and OSHA recording and reporting requirements of COVID-19 cases contracted in the workplace, which we have explained below. Moreover, this new law applies to nearly all public and private employers –– even those not required to maintain a Cal/OSHA Form 300 (Log of Work-Related Injuries and Illnesses) must provide the required notices.
Employer Notice Requirements
Newly added California Labor Code § 6409.6(a) details employer notice requirements. Within one business day of notification of a potential exposure to COVID-19, the employer must provide notices. The employer might receive such notification from:
- a public health official or a licensed medical provider reporting that an employee was exposed to a "qualifying individual" at the work site;
- an employee or his/her emergency contact that the worker is a "qualifying individual";
- the testing protocol of the employer that the employee is a "qualifying individual";
- a subcontracted employer that a "qualifying individual" was on the work site of the employer.
A "qualifying individual" is a person who demonstrates any of these:
- a laboratory-confirmed case of COVID-19 as defined by the California Department of Public Health (antibodies and diagnostic);
- a positive COVID-19 diagnosis from a licensed health-care provider;
- an order from a public health official related to COVID-19 to isolate;
- a death due to COVID-19 as determined by the county public health department or per inclusion in the COVID-19 statistics of a county.
Employers must provide notices to:
- all employees and employers of subcontracted employees who were on the same work site as the qualifying individual within the infectious period; and
- the exclusive representative of employees, usually unions.
The notice must:
- include a statement that the recipients might have been exposed to COVID-19;
- include a description of the benefits that employees may receive under federal, state or local laws including but not limited to workers' compensation benefits, COVID leave, paid sick leave and the company’s anti-discrimination, anti-harassment and anti-retaliation policies, and a description of the company’s disinfection protocols and safety plan to eliminate any further exposures (See the subsection below, Recommendations to Businesses.);
- protect employee privacy and not disclose personally identifiable information or personal health information.
Definition of Work Site: Per the bill (LC 6409.6), this refers to 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 business that a qualified individual did not enter. In a multiple work site environment, the employer need only notify employees who were at the same site as the qualifying individual. The language is confusing but, presumably, means that the employer need not provide notice to all employees if the affected worker did not enter certain buildings, floors or other locations. If there is a question as to which workers should be notified, the employer should consider sending notices to all employees.
Infectious Period: The time an individual who has tested positive for COVID-19 is infectious is defined by the California Department of Public Health. : "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." The infectious period for someone who tests positive but has no COVID-19 symptoms is two days before the specimen for his or her first COVID-19 test was collected and it ends 10 days after the specimen for the first COVID-19 test was collected.
Method of Delivery: Written notice must be delivered by whatever means the employer generally uses to communicate policies to employees. That might include personal service, email or text message if it's reasonably likely that the employee will receive the notification within one business day of sending it. The notice must be in both English and the language understood by the majority of the employees.
Failure to comply with the notification requirements might subject the employer to a civil penalty.
Businesses must maintain records of any written notifications for three years.
Exclusions from Notice Requirements: Employees who, as part of their duties, conduct COVID-19 testing, screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID-19 are excluded from the notice and reporting provisions of the law. That's because the burden on the employer to send out notices to employees every time they test, screen or provide direct patient care to someone who is positive for COVID-19 would be too great. But if the qualifying individual is an employee of the facility, notice and reporting might be required.
Employer Reporting Requirements
California LC 6409.6(b) codifies an employer's duty to report coronavirus outbreaks in the workplace. The requirement is effective immediately. If a business experiences a COVID-19 outbreak as defined by the California Department of Public Health, the employer must report it to the local public health agency in the jurisdiction of the worksite within 48 hours of learning of the outbreak. The Department of Public Health defines an “outbreak” as three or more laboratory-confirmed cases of COVID-19 within a two-week period among workers who live in different households.
In the event of a COVID-19 fatality, the employer must notify the local health department and provide the names, numbers, occupations and worksite of employees who died due to a COVID-19 exposure.
The Department of Public Health is required to make workplace statistics received from local health departments available on its website to enable the public to track the number of cases and outbreaks by industry. The department is not authorized to release any personally identifiable employee information on the website.
The notification and reporting requirements apply to all employers regardless of size. The only exceptions are for health-care facilities as defined by Health and Safety Code § 1250 and exposures by employees whose regular duties include COVID-19 testing or screening or who provide patient care to individuals known or suspected to have COVID-19, unless the qualifying individual is also an employee at the same worksite. The definition of health-care facility is broad and includes clinics, hospitals, convalescent hospitals and skilled nursing facilities among others. The full definition can be found here.
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