On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685, which expands Cal/OSHA’s enforcement authority and creates new requirements for employers to notify employees, employers of subcontracted employees, and local public health agencies of COVID-19 exposure in the workplace.  The new law goes into effect on January 1, 2021.

Notice to Employees and Employers of Subcontracted Employees

Under Labor Code section 6409.6, part of AB 685, employers must take the following actions within one business day if they or their representative receive “notice of a potential exposure” to COVID-19:

(1) Provide written notice to all employees, and the employers of subcontracted employees, who were at the same worksite as a “qualifying individual” within the infectious period that they may have been exposed to COVID-19;

(2) Provide a written notice to applicable representatives of employees;

(3) Provide all employees and/or applicable representatives of employees who may have been exposed with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws (such as workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or other negotiated leave provisions and any anti-retaliation and anti-discrimination protections applicable to the employee); and

(4) Notify all employees, and the employers of subcontracted employees, of the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

Background on the Requirements

“Notice of a potential exposure” occurs when an employer or its representative receive notification:

• From a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite;
• From an employee or her emergency contact that the employee is a “qualifying individual”;
• Through the employer’s testing protocol that an employee is a “qualifying individual”; or
• From a subcontracted employer that a “qualifying individual” was on the employer’s worksite.

A “qualifying individual” is a person who has a laboratory-confirmed case of COVID-19, a positive diagnosis of COVID-19 from a licensed health care provider, a COVID-19-related order from a public health official to isolate, or died due to COVID-19 as determined by a county public health department or a county’s COVID-19 statistics.

Reporting to Local Public Health Agencies

Employers must also notify local public health agencies within 48 hours when they become aware of a “workplace outbreak” (defined as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period).  The notification must include the names, phone number, occupation, and worksite of the employees who make up the workplace outbreak, in addition to other information.  There is obvious tension between this notice requirement and employees’ privacy rights, and we anticipate this may result in litigation. AB 685 anticipates this tension and seeks to address it by including a limitation that employees’ personally identifiable information shall not be (a) subject to a Public Records Act request, (b) posted on a website, or (c) shared with any other state or federal agency.  While this limitation is useful, it fails to entirely address all privacy-related concerns for employees and employers.

Cal/OSHA’s New Authority

Cal/OSHA’s authority to issue Orders Prohibiting Use (“OPU”) and shut down entire worksites is expanded under AB 685.  When Cal/OSHA determines that employees are exposed to an “imminent hazard” related to a risk of infection by COVID-19, Cal/OSHA may shut down the worksite.  An imminent hazard is a hazard that could reasonably be expected to cause death or serious physical harm and is immediate in nature.

Additionally, effective January 1, 2021, Cal/OSHA no longer needs to provide a 15-day pre-citation notice for COVID-19-related serious violations.  Prior to AB 685, Cal/OSHA typically provided a 15-day notice to employers prior to issuing a serious violation.

A link to the text of AB 685 is here and the Cal/OSHA page with frequently asked questions may be found here.