We recently blogged about SB 1159 here, which expanded protections for employees potentially exposed to COVID-19 in the workplace. On September 17, 2020, Governor Newsom also signed into law AB 685, which provides additional requirements for employers to report cases of COVID-19. AB 685 will not take effect until January 1, 2021; therefore, employers have some time to review the law and begin preparing for their new reporting obligations.
When Must an Employer Report?
AB 685 states that an employer is obligated to notify employees in writing within one business day if it receives “notice of potential exposure” of an employee to COVID-19.
In addition, employers must notify the worksite’s local public health department of COVID-19 outbreaks (defined to be 3 or more cases in a 14-day period) within 48 hours of learning of the outbreak. Employers must provide the public health department the names, numbers, occupations, and worksite(s) of all qualifying individuals, as well as the business address and North American Industry Classification System (NAICS) code of the worksite(s) of the qualifying individuals. Employers experiencing outbreaks must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 cases at the worksite(s).
What Information Must the Employer Provide?
AB 685 requires an employer to take the following actions within one business day of a “potential exposure” based on a positive confirmed case of COVID-19 in the workplace:
-Provide written notice to all employees (and the employers of subcontracted employees) who were on the premises at the same worksite as a qualifying individual, within the infectious period, that they may have been exposed to COVID-19;
-Provide written notice to the exclusive representative, including unions, if any, of the notified employees;
-Provide information regarding the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the CDC; and
-Provide written notice to employees and/or employee representatives regarding COVID-19-related benefits that employee(s) may receive, including workers’ compensation benefits, COVID-related leave, paid sick leave, and the company’s anti-discrimination, anti-harassment, and anti-retaliation policies.
Written notice may include, but is not limited to, personal service, email, or text message if the employer reasonably anticipates that the message will be received by the employee within one business day of sending. The written notice shall be in both English and the language understood by the majority of the employees.
A qualifying individual is defined as a person who has any of the following:
- A laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health;
- A positive COVID-19 diagnosis from a licensed health care provider;
- A COVID-19-related order to isolate provided by a public health official; or
- Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.
The infectious period is defined as the time a COVID-19-positive individual is infectious, as defined by the State Department of Public Health.
How Long Must Employer Keep Records?
Employers must maintain records of written notifications of COVID-19 potential exposure outbreaks for at least three years. The employer should keep this information in a confidential manner, similar to the manner in which the employer maintains other confidential employee medical information.
What Should Employers Do Now?
AB 685 will not take effect until January 1, 2021, but employers should begin reviewing their COVID-19-related processes and procedures now to ensure they are compliant once the law becomes effective. Because employers must provide notice to their employees within one business day, it is crucial that employers have their employee notice process in place ahead of time.
