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Labor/Employment,
Covid Columns

Oct. 7, 2020

Assembly Bill 685: What California employers need to know

The bill codifies an employer’s reporting requirements in the event of COVID-19 infections at the workplace and clarifies Cal/OSHA’s authority to cite and shut down worksites that are violating COVID-19 safety requirements.

Lazerson wendy web

Wendy M. Lazerson

Partner, Sidley Austin LLP

1001 Page Mill Road
Palo Alto , CA 94304

Email: wlazerson@sidley.com

Albany Law School

Wendy is the head of the firm's Northern California Labor and Employment Group and a partner in the firm's Palo Alto office.

Knotz galit

Galit A. Knotz

Counsel, Sidley Austin LLP

Email: gknotz@sidley.com

Cornell University; Ithaca NY

Galit is part of the firm's Labor, Employment and Immigration practice.

Hudson abigail

Abigail Hudson

Associate, Sidley Austin LLP

Email: abigail.hudson@sidley.com

Abigail is part of the firm's Labor, Employment and Immigration practice.

Employers are scrambling to understand and comply with Assembly Bill 685, which Gov. Gavin Newsom signed into law last month along with two other COVID-19 related laws. AB 685, which takes effect Jan. 1, 2021, includes two facets: It codifies an employer’s reporting requirements in the event of COVID-19 infections at the workplace and clarifies Cal/OSHA’s authority to cite and shut down worksites that are violating COVID-19 safety requirements. Although AB 685 does not go into effect until next year, employers should aim to be in compliance as soon as possible, as the law mostly clarifies requirements already in play.

Notice and Reporting Requirements

AB 685 largely codifies requirements already listed in the California COVID-19 Employer Playbook — a compilation of mandatory and recommended COVID-19 safety guidelines for employers that the California Department of Public Health first issued in conjunction with the governor’s office on July 24. Despite numerous updates, however, the Playbook is ambiguous about whether certain guidelines are mandated or simply best practices. AB 685 clarifies that notice and reporting requirements are mandatory, specifies the content and timing of the required notices, and makes clear that employers who violate these requirements are subject to penalties. AB 685 applies to both public and private employers, but not to health facilities.

Upon receiving notice of any potential exposure in the workplace, employers must notify the workforce within one business day. An employer “receives notice” of potential exposure when it learns that an employee tested positive for, was diagnosed with, or died from COVID-19, or when a public health official or medical provider notifies the employer that an employee was exposed to COVID-19 at the worksite. The employer must provide written notice to all employees and employers of subcontracted employees who were at the same worksite as the individual with COVID-19 during the infectious period, which is currently defined by the state as the 48 hours before the person showed signs of symptoms or tested positive. The statute defines “worksite” as “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period,” but not, for example, “buildings, floors, or other locations of the employer that a qualified individual did not enter.” Thus, if a workplace has multiple floors, for example, an employer need only notify employees who entered the floor of the infected employee during the infectious period.

The notice must not identify the infected employee. The notice should include the disinfection and safety plan that the employer plans to implement, as well as provide information about COVID-19-related benefits to which the employees may be entitled, such as workers’ compensation, sick leave, and other leaves available. If employees are represented by a union, notice must also be given to the union representative and contain the same information as a Cal/OSHA incident report and injury log (Forms 300 and 301). Employers must keep a record of all notices for at least three years.

In the case of an “outbreak,” additional reporting is required. The statute uses the DPH’s definition of “outbreak,” defined in the California Playbook as three or more laboratory-confirmed cases of COVID-19 in a two-week period among employees from different households. In addition to the above notice requirements, in the event of an outbreak, the employer must notify the local public health agency of the names, number, occupation, and worksite of “qualified individuals” within forty-eight hours. AB 685 defines “qualified individuals” as anyone who has had a confirmed case of COVID-19 via positive test or diagnosis by a health care provider, has been ordered to isolate by a public health official, or has died due to COVID-19. The law also mandates that an employer with an outbreak continue to provide notice to the local health department of all subsequent laboratory-confirmed cases of COVID-19 at the worksite, and, disconcertingly, sets no cutoff for this continuing obligation.

AB 685 further requires the DPH to compile information reported to local health departments by industry on its website. DPH will not publish the names of infected employees, but it remains unclear whether the industry information will identify businesses by name. While the DPH is the agency empowered to enforce very similar requirements already listed in the California Playbook, AB 685 also empowers both the Labor Commissioner and California Division of Occupational Safety and Health (Cal/OSHA) to enforce the statute and issue citation and/or civil penalties for untimely or incomplete reporting.

Clarification of Cal OSHA’S Authority over COVID-related Hazards

Under its current authority, Cal/OSHA has the power to shut down a worksite or prohibit operation of certain equipment if the worksite or equipment present an “imminent hazard.” An imminent hazard is a “hazard which could reasonably cause death or serious physical harm immediately or before the imminence of the hazard can be eliminated through regular Cal/OSHA enforcement procedures.” AB 685 clarifies that employees’ exposure to COVID-19 in the workplace could rise to the level of “imminent hazard” under some circumstances, but does not provide further guidance on what those circumstances include. Following a Cal/OSHA shut down, a worksite cannot reopen until the agency determines that the imminent hazard has been eliminated, but the new law does not explain what this means in the COVID-19 context.

Cal/OSHA does not publish a list of workplaces that it has shut down, but anecdotal evidence suggests that shut downs are infrequent. It remains to be seen whether AB 685 will embolden Cal/OSHA to enforce its shut down authority more readily than in the past.

Cal/OSHA also currently has authority to issue a citation for a “serious violation” at the workplace, which is defined as the “realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.” Under existing law, Cal/OSHA must notify an employer of a pending citation and provide the employer 15 days to submit evidence in its defense before issuing a citation for a serious violation. AB 685 eliminates this notice period for COVID-19-related serious violations. Cal/OSHA appears to be publishing at least some of the COVID-19-related citations it has issued to date, including by identifying the cited business, the specific reason for the citation, and the citation amount. It remains to be seen if the Agency will increase its citation rate and continue publishing such detailed accounts of violations once the notice period requirement is eliminated on Jan. 1.

The new Cal/OSHA provisions are set to be repealed on Jan. 1, 2023. Since these provisions will be in effect for only two years, it is unclear whether Cal/OSHA will publish regulations or guidance beyond the recently published Frequently Asked Questions, which do little to expand on the law’s more perplexing provisions.

Conclusion

AB 685 provides new incentives for employers to continue monitoring COVID-19 cases at the workplace, follow reporting requirements that are largely already in effect, and abide by state guidelines for creating a safe workplace in the COVID-19 era. In particular, given that the law does not clearly define the standards for Cal/OSHA citations and shut down, as well as the agency’s zealous publication of issued COVID-19-related citations, the consequences of ignoring this law could be significant. 

#359894

Ben Armistead

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