Last month, Governor Newsom signed into law AB 685, which becomes effective on January 1, 2021. The law requires employers to take specified actions once the employer receives notice of a Covid-19 outbreak or potential exposure to Covid-19 in the workplace. Further, the law authorizes California's Division of Occupational Safety and Health (“Cal/OSHA”) to essentially shut down a business where, in its opinion, an “imminent hazard” exists due to Covid-19. The law remains in effect until January 1, 2023.
Employer Reporting Requirements
An employer's obligations under the new law are triggered once an employer receives notice of a “qualifying individual” in the workplace. A “qualifying individual” is defined as any person who has (1) a laboratory confirmed case of Covid-19; (2) a positive Covid-19 diagnosis from a licensed health care provider; (3) a Covid-19 order to isolate from a public health official; or (4) died due to Covid-19.
Once an employer has notice of a “qualifying individual” in the workplace, the employer must take the following actions within one business day: (1) provide written notice, in a manner the employer normally provides notice to employees, to all employees, the employers of subcontracted employees, and any exclusive representative of either (“Notice Recipients”) who were on the same premises as the “qualifying individual” within the “infectious period”; (2) provide the Notice Recipients with information regarding Covid-19 related benefits to which they may be entitled such as workers' compensation or sick leave, as well as anti-discrimination and anti-retaliation protections; and (3) notify the Notice Recipients of the employer's disinfection and safety plan pursuant to the federal Centers for Disease Control guidelines. Notice provided to any exclusive representative of an employee or employer of a subcontracted employee must contain the same information required in a Cal/OSHA Form 300 injury and illness log, unless the information is inapplicable or unknown to the employer.
The “infectious period,” as determined by the State Department of Public Health, is 14 days, including the 48 hours before the individual developed symptoms or, if asymptomatic, 48 hours prior to administration of a positive Covid-19 test.
Additionally, if an employer has notice of a Covid-19 “outbreak” at the workplace, the employer must notify the public health agency in the workplace's jurisdiction. The State Department of Public Health defines “outbreak” as 3 or more laboratory-confirmed Covid-19 cases within a 2-week period among workers who live in different households. The employer must provide the public health agency with the names, numbers, occupations, and worksite of the “qualifying individuals.” The employer must also provide the business address and NAICS code of the worksite.
The new law applies to public and private employers. Employers must maintain records of any notice provided under the new law for at least 3 years.
Cal/OSHA's Expanded Authority
AB 685 authorizes Cal/OSHA to take action when, in its opinion, the risk of infection from Covid-19 in the workplace poses an “imminent hazard” to employees. An “imminent hazard” is defined as a condition or practice at the worksite that could reasonably cause death or serious physical harm immediately or before the hazard can be eliminated through Cal/OSHA's regular enforcement procedures.
If Cal/OSHA determines that an “imminent hazard” exists due to Covid-19, it has authority to prohibit operation of the worksite or prevent entry into the worksite. If Cal/OSHA takes such action, notice must be given to the employer and also posted in a conspicuous place in the worksite. Cal/OSHA's authority to essentially shut down a place of employment is limited to the worksite, operation, or process in the immediate area where the imminent hazard exists.
Generally, prior to issuing a citation to an employer alleging a serious violation at a worksite, Cal/OSHA must provide the employer with a 15-day notice and an opportunity to rebut the presumption that a serious violation occurred. The new law, however, eliminates the 15-day notice requirement and an employer's opportunity for rebuttal for citations alleging a serious violation related to Covid-19.