Recently enacted Assembly Bill 685 makes changes to COVID-19 employer notification requirements and gives Cal/OSHA greater enforcement powers. AB 685 amends sections 6325 and 6432 and adds section 6409.6 to the Labor Code.   It applies to public employers except health facilities as defined in the Health and Safety Code, or to employees who conduct COVID-19 testing or screening or who provide direct patient care to individuals who have tested positive for COVID-19 or are in quarantine.

While these amendments are directly related to COVID-19, these provisions do not go into effect until January 1, 2021.

California Labor Code section 6409.6

The amended Labor Code provisions require employers, including school districts, to provide written notice to employees within one business day, if the employer receives notice of an employee's potential exposure to COVID-19.  Specifically, written notices must be sent to all employees who were on the premises at the same worksite within the infectious period.  Notices must also be sent to the employees' labor unions.

The written notice must include:

1. A statement that the employee may have been exposed to COVID-19;
2. Information regarding COVID-19 benefits, including available leave policies and the District's anti-retaliation and anti-discrimination protections;
3. The District's disinfection and safety plan;

The written notice must be provided to all potentially exposed employees within one business day.  The notice may be sent to employees via personal service, email, or text message, so long as it can be reasonably anticipated to reach the employee within one day.  The notice must be in English and the language understood by the majority of the employees.

This amended code provision does not apply to employees who conduct COVID-19 testing or screening procedures, unless the COVID-positive employee works within the same worksite.

How to Define “Potential Exposure”

An employer is on notice of “potential exposure” to COVID-19 if the employer receives notification from a public health official, licensed medical provider, the employee or his or her emergency contact, or a subcontractor, that an employee has tested positive for COVID-19, or has been ordered to isolate because of COVID-19 by a public health official.

Upon receiving notice of potential exposure, the District must then identify which employees were at the same worksite within the infectious period.  “Worksite” means building, facility, or other location where the employee worked.

For example, if a COVID-positive employee works in the library building at a school site, all employees working within the library must be notified.  Employees who work in a separate building and who did not go into the library during the infectious period, do not need to be notified.

Action Items for a COVID-19 “Outbreak”

Should an employer receive notice that three or more employees from different households have tested positive for COVID-19 within a two-week period, the employer must report these COVID-19 results to the local health department.  The District's report should include the names of the employees, their phone numbers, their occupations, and their worksites.

Employers are to maintain records of such notifications for at least three years.

AB 685 also authorizes Cal/OSHA to stop the performance of an operation or process, or entry into any place of employment when it exposes workers to the risk of infection with COVID-19 so as to constitute an imminent hazard to the employees. Any such stop orders are limited to the immediate area in which the imminent hazard of COVID-19 exposure exists. However, any such stop order can only be issued in a manner so as not to materially interrupt the performance of critical governmental functions essential to ensuring public health and safety. Cal/OSHA is authorized to issue citations for any such violations related to COVID-19.

Conclusion

While these amendments to the California Labor Code are relevant to the COVID-19 pandemic, they do not become effective until January 1, 2021.  As a result, employers have some time to develop proper notification procedures for employees who may have been exposed to COVID-19.

Should you have any questions or need assistance these new mandated notice policies, please contact us by e-mail or by telephone at (714) 573-0900 (Southern California office) or (916) 245-8677 (Northern California office).