Steps for Implementing Policy to Comply with Notice Requirements under AB 685

November 16, 2020: FELS Group Legal Service Program partner law firm Barsamian & Moody has furnished templates for employers to provide required notices of possible COVID-19 workplace exposures, employers’ worksite sanitation protocols, and benefits available for employers required by AB 685 (Reyes) as of 1/1/21.  Barsamian & Moody has furnished templates for employers generally (Spanish), Farm Labor Contractor employers (Spanish), and unionized employers (Spanish).

November 2, 2020: The California Department of Public Health (CDPH) has published new guidance, Employer Questions about AB 685, California’s New COVID-19 Law, to answer questions and assist employers in complying with upcoming AB 685 requirements. The CDPH has also established definitions for several of the key phrases in the law which previously left employers searching the CDPH website for answers. What follows is an update to our October 6, 2018 Memorandum which outlined the steps that employers should be taking to prepare for compliance with AB 685 requirements.

Updated definitions for determining whether the reported exposure triggers the notice requirement:

Upon learning of a potential exposure in the workplace, employers must quickly determine if notice must be provided to employees. The AB 685 noticing requirements are triggered by “qualifying individuals” being present at a worksite. The CDHP provided a slightly more specific definition of a “qualifying individual” to include any of the following: (a) an individual receiving a positive viral test for COVID-19; (b) a positive COVID-19 diagnosis by a licensed health care provider; (c) a COVID-19-related order to isolate provided by a public health official; or (d) somebody who has died due to COVID-19 (as determined by a county public health department).

As stated, under the new guidance, an individual receiving a “positive viral test” is a qualifying individual. The CDHP made this terminology change, from the previous term: “laboratory-confirmed.” In addition to the terminology change, the CDPH also defined a “positive viral test,” which has previously had no definition in context of AB 685,to include nucleic acid (PCR) and antigen tests.

Update to the definition of “infectious period,” which is key in determining which employees must be notified:

Once an employer is made aware that a qualifying individual has been at a worksite during the infectious period (defined below), they must provide notice to those who may have been exposed.

The “infectious period” is the time period during which a COVID-19 positive individual is infectious as defined by the CDPH. Under the new guidance, the CDPH provided an update on the definition of “infectious period” for both symptomatic and asymptomatic individuals:

•  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.
•  For an individual who tests positive but never develops symptoms, the infectious period for COVID-19 begins 2 days before the specimen for their first positive COVID-19 test was collected. The infectious period ends 10 days after the specimen for their first positive COVID-19 test was collected.

It is important to be aware that as we move forward, this definition is subject to change as more information is learned about the spread and infection rate. Current information is available at the CDPH COVID-19 page.

Update to the definition of “outbreak” for determining whether it is necessary to notify the local department of health:

Within 48 hours of an employer being aware of an “outbreak” as defined by the State Department of Public Health, an employer must notify the local Department of Public Health in the jurisdiction of the worksite. Under the new guidance, an “outbreak” is defined as “three or more workers with COVID-19 within a 14-day period.” Updates on the definition can be located on the CDPH website guidance page.

Update to Cal/OSHA authority relating to administrative citations:

In addition to having authority to issue Orders Prohibiting Use, and issue serious violations without otherwise required notice, employers should also be aware that Cal/OSHA has the authority to cite or fine employers for violations of the worker notification provision.

What This Means for Employers:

Employers have the remaining months of 2020 to prepare policies implementing the new requirements under AB 685. With the additional definitions provided by the State Department of Public Health, employers can ensure that they are familiar with and continue to train management and employees to provide for a smooth transition with compliance into 2021.

UPDATE: Editor’s Note: October 12, 2020: The California Department of Industrial Relations (DIR) has published Frequently-Asked Questions (FAQ) on their website signaling their intent with respect to how the Department intends to enforce new employee notice, outbreak reporting, and loosening of Cal/OSHA citation procedures and expansion of the agency’s Order Prohibiting Use (OPU) authority.  It’s interesting to note that the FAQ start with explaining the expansion of OPU authority, perhaps a signal that Cal/OSHA intends to make extensive use of that authority. 

October 6, 2020: Governor Newsom recently signed Assembly Bill 685 (Reyes) which expands the reporting and notification requirements for employers and increases CAL/OSHA’s authority relating to COVID-19.  The new law establishes requirements for employers to notify employees and any relevant unions about potential exposure to COVID-19 in the workplace as well as to report a COVID-19 “outbreak” to local health authorities.  These new requirements are effective beginning on January 1, 2021 and are slated to continue through January 1, 2023.  In order to comply with these new requirements, employers will likely need to develop new policies and procedures.  What follows is an outline of the steps employers should consider implementing to ensure compliance with AB 685.

 Train supervisors and employees to report COVID-19 exposure to management:

In order to comply with the notice requirements, an employer must know of the existence of an infected individual on the worksite.  Employers should clearly identify a designated individual responsible for receiving such reports of COVID-19 exposure and overseeing the notice requirements.  Additionally, employers should train employees on the importance of immediately notifying the designated individual of any exposures to COVID-19.

Determine whether the reported exposure triggers the notice requirement:

Upon learning of a potential exposure in the workplace, employers must quickly determine if notice must be provided to employees.  The AB 685 noticing requirements are triggered by “qualifying individuals” being exposed, which include  any of the following: (a) a laboratory-confirmed case of COVID-19; (b) a positive COVID-19 diagnosis; (c) a COVID-19-related order to isolate provided by a public health official; or (d) somebody who has died due to COVID-19 (as determined by a county public health department).

 Determine which employees must be notified:

Once an employer is made aware that a qualifying individual has been at a worksite during the infectious period (defined below), they must provide notice to those who may have been exposed.  Employers are required to notify, in writing, all employees who were at the same worksite as the qualifying individual during the infectious period.  Employers must also notify the employer of any subcontracted employees or the representative (e.g., a union representative) of employees who were at the same worksite within the infectious period.

The “infectious period” is the time a COVID-19 positive individual is infectious as defined by the State Department of Public Health.  That definition is subject to change as more is learned about the spread and infection rate.  Current information is available at:  https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx

 Provide timely and complete notice to exposed employees:

Within one business day of being made aware of a qualifying individual having been on a worksite, the employer must provide written notice to all employees, employee representatives, and the employer of any subcontracted employees who are subject to notice.  The notice must be provided in both English and any other language understood by the majority of employees.  Notice should be provided in the manner normally used to communicate to the employees, such as hand delivered letters, email, or text message.  Records of the written notification must be maintained for at least three years.

Employees must be made aware of the potential exposure; however, care should be taken to safeguard the protected medical information of the qualifying individual. To be legally compliant, employers must also provide notice of COVID-19 related benefits available under local, state, and federal laws, as well as anti-retaliation and anti-discrimination protections.

Finally, employees, their representatives, and employers of subcontracted employees must be notified of the disinfection and safety plan that will be implemented per the Centers for Disease Control guidelines. The CDC guidelines are constantly being amended as more information becomes available about COVID-19. Current guidelines  are at: https://www.cdc.gov/coronavirus/2019-ncov/community/index.html    

 Determine whether it is necessary to notify the local department of health:

Within 48 hours of an employer being aware of an “outbreak” as defined by the State Department of Public Health, an employer must notify the local Department of Public Health in the jurisdiction of the worksite. Again, it is imperative that the employers’ designated individual be aware of the definition of an outbreak as defined by the State Department of Public Health as that definition varies from other Government administrations. The California State Department of Public Health currently defines an “outbreak” as three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period. Updates on the definition can be located at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Workplace-Outbreak-Guidance.aspx#

 Prepare for potential administrative citations and civil liability:

Under AB 685, CAL/OSHA has authority to issue Orders Prohibiting Use (OPU). However, CAL/OSHA does not the authority to shut down all operations when exposure is limited to one work location, or even one department at a worksite. Therefore, preemptively, where possible, employers should limit employee cross over from one operation, facility, or job location to the next. Once a case is confirmed, employers should act quickly to limit cross contamination to avoid other operations or facilities from being subject to the OPU. In addition to the OPU, CAL/OSHA also has the authority to issue citations for serious violations without providing 15 days’ notice before issuance.

What This Means for Employers:

Employers have the remaining months of 2020 to prepare policies implementing the new requirements under AB 685. Employers can begin gathering contact information necessary should it become necessary to notify the Local Health Department. The roughly two months before January should also be used to begin training employees and supervisors on the importance of notifying management when COVID exposure is suspected.

Employers should begin reviewing the steps above in order to create a seamless policy moving into January 1, 2021 because failure to comply with the new health and safety regulations may expose an entity to civil penalties.

The goal of this article is to provide employers with current labor and employment law information.  The contents should neither be interpreted as, nor construed as legal advice or opinion.  The reader should consult with Barsamian & Moody at (559) 248-2360 for individual responses to questions or concerns regarding any given situation.