Friday 18th December 2020
Employers should be aware of a new law, California AB 685, which goes into effect January 1, 2021, that creates reporting requirements that require employers of all sizes to notify their workers and the local public in writing of their industrial and non-industrial COVID-19 cases to health officials as well the California Occupational Safety and Health Agency (Cal-OSHA). The law will remain in force until January 1, 2023. Employers who fail to comply with the provisions of AB 685 will be punished and cited under civil law.
This Opinion summarizes California AB 685, which is codified under Section 6409.6 of the California Labor Code (and Sections 6325 and 6432, as amended) and introduces new requirements for employers to suspect their employees, subcontractor employees, and union representatives informing of diagnosed cases of COVID-19 and also reporting of “outbreaks” of COVID-19 in the workplace to local health departments.
Notification of COVID-19 exposure
According to the newly enacted Section 6409.6, employers must inform employees about possible COVID exposure. In particular, the new notice calls on employers to take the following actions within one working day a “potential exposure” based on a confirmed positive case of COVID-19 in the workplace:
Notification to employees and employers of subcontractors – Inform all employees and employers of employees who were on the construction site during the infection period and who may have been exposed to COVID-19 in writing. “Construction site” under AB 685 means “the building, business, facility, agricultural field or other location where a worker has worked during the infection period”.
Notice to employee representatives – Provide employee representatives, including labor unions and lawyers, with written notice (which must contain the same information that would be required in an incident report in the Cal-OSHA Form 300 Injury and Illness Log, if the information is incorrect to the employer or are unknown).
Notice to employees regarding COVID-19-related services – Provide written information to workers and / or workers’ representatives of the COVID-19 benefits that an worker may receive, including worker compensation benefits, paid sick leave, additional sick leave and the employer’s anti-retaliation and anti-discrimination policies.
Notice to employees on security protocols – Inform employees in writing of the employer’s disinfection and safety plan to avoid further exposure in accordance with CDC guidelines.
The written communication can include any type of delivery (e.g. personal service, email or SMS) if it is received by the employee within one working day of being sent. The notification must be in both English and in a language understood by the majority of employees. Communications should not disclose the identity of the employee who tested positive for COVID-19 in order to protect the employee’s privacy. The records of these notices must be kept for a minimum of three years.
The new law also requires an employer with a “COVID-19 outbreak” as defined by the California Department of Health (CDPH) to report mandatory information to the local health authority in the workplace jurisdiction within 48 hours of learning the outbreak. As of December 3, the CDPH defined a COVID-19 outbreak in a non-healthcare workplace as At least three probable or laboratory-confirmed COVID-19 cases among workers on the same construction site within 14 days. The employer must continue to notify the local health authority of all laboratory-confirmed cases of COVD-19 in the workplace.
Cal OSHA enforcement changes
Cal-OSHA already has the authority to shut down any work site that presents an imminent hazard, which is defined as “a hazard that can reasonably be expected to be eliminated through regular removal immediately or before the hazard is imminent. Cal-OSHA Enforcement Proceedings. “AB 685 provides that Cal-OSHA can now cease operations if, in Cal-OSHA’s opinion, a construction site or operation exposes workers to the risk of infection from COVID-19 in order to present an imminent hazard.
AB 685 also changes the process if Cal-OSHA intends to issue a serious citation. Typically, if Cal-OSHA intends to issue a serious quotation, the agency must first provide the employer with a letter of intent identifying suspected violations and conditions that warrant quotation. The employer then has the option of responding to the communication with evidence within 15 days. With AB 685, Cal-OSHA no longer has to warn of COVID-19 related hazards. As a result, Cal-OSHA can effectively issue a quote immediately, and employers no longer have the opportunity to find out about a quote in advance and act accordingly, although employers can still appeal the quote.
Take away employer
Employers should take steps now, with the assistance of their attorney, to establish and coordinate documentation and follow-up procedures as well as security processes and notification methods. Considerations should include:
Implementing safe and effective measures to prevent and minimize the risk of the spread of COVID-19 on the construction site;
Documentation and implementation of disinfection procedures after notification of COVID-19 exposure on the construction site;
Develop documentation and procedures to notify employees of COVID-19 exposure;
Develop documentation and procedures to notify employees of the benefits of COVID-19.