New employer notice requirements on workplace exposure to COVID-19

Q: Is it true that employers will soon be required to provide notice to employees if there is a risk that they may have been exposed to COVID-19 in the workplace?

A: Yes. On Sept. 17, Gov. Newson signed AB 685, which requires employers to provide timely notification to employees and to local and state public health officials of potential exposure to COVID-19 in the workplace.

AB 685 applies to all private and public employers but does not apply to a health facility or employees who conduct COVID-19 testing or screening, or who provide direct patient care to individuals with known or suspected cases of COVID-19. Employers who receive notice of a potential COVID-19 exposure in the workplace by a “qualifying individual” (defined as a person who has a laboratory confirmed case of COVID-19, a positive COVID-19 diagnosis from a licensed health care provider, a COVID-19 related isolation order issued by a public health official, or who died due to COVID-19), must provide notice to employees of the potential exposure within one business day of being informed of the potential exposure. The employer may not disclose the name of the qualifying individual. The notice must be in writing and provided to:

• All employees, and employers of subcontracted employees, who were present at the same “worksite” as the qualifying individual within the “infectious period,” as defined by the State Department of Public Health, which is currently a minimum of 48 hours before the individual developed symptoms. The “worksite” is defined as the place where the qualified individual worked during the infectious period.

• The employees’ representative(s), if any, including unions and attorneys. The notice must be provided in the manner the employer normally uses to communicate employment related information to employees, as long as it can be reasonably anticipated the notice will be received within one business day.

The notice must be provided in English and the language understood by the majority of the employees.

The notice must include:

• A description of all COVID-19 related benefits or leave rights available to employees under federal, state, and local laws, and pursuant to the employer’s policies, as well as information regarding the prohibition of retaliation and discrimination against employees.

• The employer’s plans for implementing and completing a disinfection and safety plan pursuant to the federal Centers for Disease Control guidelines. The disinfection and safety plan must be provided to all employees, not just those who were potentially exposed to COVID-19.

Employers are required to maintain records of the notices they provide for a minimum of three years. An employer must also notify its local public health agency within 48 hours if the number of workplace COVID-19 cases meets the State Department of Public Health’s definition of a COVID-19 outbreak (currently defined as three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period.)

AB 685 authorizes the California Division of Occupational Safety and Health to prohibit the operation of or entry into the workplace if it determines there is an imminent hazard to employees because of the risk that employees will be exposed to COVID-19. AB 685 becomes effective Jan. 1, 2021; therefore, employers should prepare now for the new notice and reporting requirements. The full text of AB 685 can be found at https:// bit.ly/3l8p4mx. Additionally, California Department of Public Health guidance can be found at: https:// bit.ly/2EPFErH