AB 654: Clarification of employers’ notification, reporting requirements after COVID-19 exposure in the workplace

Assembly Bill 654, which became effective October 5, 2021, makes notable revisions to an employer's COVID-19 exposure notification and reporting requirements. Last year's AB 685, which was effective January 1, 2021, provided that employers must notify certain employees (including employees of certain subcontractors) when (1) the employees are exposed to a "qualifying individual" who is determined to have been infected by, diagnosed with, or died as the result of contracting COVID-19, and (2) the employee had exposure to the "qualifying individual" at the place of work during the "infectious period." A "qualifying individual" included an employee, guest, contractor, vendor or other visitor. To determine the "infectious period," AB 685 incorporated the State Department of Public Health's definition, which distinguishes between symptomatic and asymptomatic qualifying individuals. For symptomatic Individuals, the infectious period begins two days before they first develop symptoms and ends when the following criteria are met:

• 10 days have passed since symptoms first appeared, and

• At least 24 hours have passed with no fever (without use of fever-reducing medications), and

• Other symptoms have improved.

For asymptomatic individuals who test positive, the infectious period begins two days before the specimen for their first positive COVID-19 test was collected and ends 10 days after the specimen for their first positive COVID-19 test was collected.

Clarification Regarding Notice to Employees

AB 654 clarifies the inconsistencies within AB 685 about to whom notice of potential exposure, benefits and disinfecting information should be given. AB 685 stated that employers were required to give the notice of potential exposure to all employees and employers of subcontracted employees "who were on the premises at the same worksite as the qualifying individual within the infection period," but, for the information on COVID-19-related benefits, the law required employers to provide notice to "all employees who may have been exposed." For information on disinfection and safety, the law was even broader, requiring notice to "all employees and the employer of subcontracted workers." These different phrases suggested employers had to potentially send different information to different groups of employees. AB 654 cleans up the statute to state that notice on all three topics (exposure, benefits and disinfection and safety) is required to be provided to all employees who were "on the premises at the same worksite as the qualifying individual within the infectious period."

Clarification Regarding Reporting a COVID-19 "Outbreak" to Applicable Local Public Health Agency

AB 685 also required employers to report a COVID-19 "outbreak" to the applicable local public health agency. For purpose of this reporting requirement, an "outbreak" was defined by the California Department of Public Health as "three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households." AB 654 revises the timeframe in which employers must provide notice of the outbreak -- changing it from simply 48 hours, to "within 48 hours or one business day, whichever is later." This addressed the situation where an employer learns of a potential exposure to a qualifying individual on a Friday. The new law's revisions clarify that an employee does not need to provide notice on weekends or holidays.

AB 654 also specifically exempts certain health facilities from this reporting requirement, because those facilities already report outbreaks under other legal obligations. 