AB 685: New COVID-19 Related Requirements for Employers in 2021
Undeniably 2020 was a struggle for many businesses due to the COVID-19 pandemic and the related restrictions put in place in response to it. In response to the pandemic, the California legislature passed several laws that took effect on January 1 of this year and employers need to be aware of these changes. One noteworthy law is AB 685, which made several temporary changes permanent. This includes, but is not limited to such changes as:
- Employers are required to notify all employees at a worksite of potential exposures, COVID-19 related benefits and protections, and disinfection and safety measures that will be taken at the worksite in response to the potential exposure.
- Employers are required to notify local public health agencies of all workplace outbreaks, which are defined as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period.
- From January 1, 2021, until January 1, 2023, Cal-OSHA can issue an Order Prohibiting Use (OPU) to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19.
- From January 1, 2021, until January 1, 2023, Cal-OSHA can issue citations for serious violations related to COVID-19 without giving employers a 15-day notice before issuance.
Notice Requirements to Employees
Under AB 685, When an employer is notified of possible COVID-19 exposure in the workplace, the employer must give written notice to all potentially exposed employees and subcontracted employees within one day. Employees and subcontracted employees will be considered to have been potentially exposed when a person who (1) has a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a licensed health care provider, (3) a COVID-19 related order to isolate provided by a public health official, or (4) 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” was on the premises during the infectious period. The notice must be provided in writing using a communication method regularly used to communicate with employees in English and whatever language is understood by most employees. The notice can be sent by email, text, personal delivery or another way so long as the message was reasonably believed to be received by the employee(s) in writing. In addition to the notice of exposure, the employer must also provide employees with information about COVID-19 related benefits available under federal, state, and local laws. This information would include workers' compensation benefits, COVID-19 related leaves, company sick leave, state-mandated leave, supplemental sick leave, and anti-retaliation and anti-discrimination protections. In the notice, the employers also need to inform all the employees of the employer's disinfection and safety plan that will be completed in accordance with the guidelines given by the Centers for Disease Control.
It is highly recommended that employers have a prepared notice drafted to meet all of these requirements. This notice needs to be ready to post or publish as soon as possible so an employer can meet the one-day notice requirement. Employers need to keep the records of all notices they give employees for at least three years.
Notice Requirements to Public Health Agency
Next, an employer must notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation and worksite of employees who may have COVID-19 or who are under a COVID-19 isolation order from a public health official within 48 hours of there being a known “outbreak.” An “outbreak” under AB 685 is defined as: “[a]t least three probable or confirmed COVID-19 cases within a 14-day period in people who are epidemiologically-linked in the setting, are from different households and are not identified as close contacts of each other in any other case investigation.” Employers must also report the business address and NAICS industry code of the worksite where the infected or quarantined individuals work. The employer must also inform the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
Grants Cal-OSHA Authority to Close Workplaces that Constitute an “imminent hazard to employees”
Additionally, AB 685 amends Labor Code section 6325 to allow Cal-OSHA to close workplaces that “constitute an imminent hazard to employees” due to COVID-19. AB 685 removes some of the notice provisions that Cal-OSHA usually must comply with before making a determination that a work environment constitutes an imminent hazard when dealing with COVID-19. This means that employers must be prepared to act immediately if Cal-OSHA designates a worksite or portion of a worksite as a hazard area due to COVID-19. If Cal-OSHA closes a workplace, the closure must be limited to the immediate area where the “imminent hazard exists.” Further, Cal-OSHA cannot prohibit entry to any areas that are outside of the hazard area. Cal-OSHA must post a notice in a conspicuous place at the place of employment making this determination. Entry must still be permitted for eliminating the dangerous condition.
More Cal-OSHA Citations Without a 15-Day Notice
Furthermore, from January 1, 2021, until January 1, 2023, Cal-OSHA can more quickly issue citations for serious violations related to COVID-19. A “serious violation” exists in a place of employment if the division demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. Cal-OSHA citations may result in receiving monetary penalties. The citations classify each violation based on the severity of the hazard. Citations are classified as serious when Cal-OSHA demonstrates there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. Prior to AB 685, when Cal/OSHA planned to issue citations for a serious violation, it would first provide a form to the employer with at least 15 days of notice prior to issuing a citation with a serious violation. AB 685 removes the possibility of a negative inference being drawn if Cal/OSHA does not send a pre-citation notice to the employer at least 15 days prior to issuing a citation for a serious violation related to COVID-19. This effectively removes the 15-day notice requirement for such citations as it relates to COVID-19 cases.
The legal issues surrounding employment law, especially during the age of COVID-19, are often complex. If you own a business and are concerned that you will have difficulty understanding or complying with new restrictions and regulations, contact a qualified attorney as soon as possible.