Employers: Notify Employees of Potential COVID-19 Exposure ASAP

attorney Sue m. Bendavid

Sue M. Bendavid | Shareholder

September 22, 2020

Chrystal Ferber | Associate

September 22, 2020

On September 17, 2020, Governor Newsom signed AB 685, which imposes stringent notice and reporting requirements in the event of COVID-19 exposure in the workplace and expands the California Division of Occupational Safety and Health’s (“Cal/OSHA”) enforcement authority to address such standards.

Notice to Employees

Under AB 685, employers must give written notice within one business day upon learning of potential exposure to COVID-19 in the workplace. The notice must be provided to all employees and employers of subcontracted employees who were present at the same worksite as the “qualifying individual” within the infectious period, stating that they may have exposed to the virus.

The statute defines a “qualifying individual” as any person who has any of the following:

  1. A laboratory-confirmed case of COVID-19;
  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, as determined by a county public health department or per inclusion in a county’s COVID-19 statistics.

The notice must include information pertaining to COVID-19 related benefits that employees may be entitled under applicable federal, state, and local laws. Examples of such benefits include workers’ compensation, COVID-19 related leave, company paid sick leave, supplemental sick leave, as well as the employer’s anti-discrimination and anti-retaliation policies.

AB 685 specifies that the notice must include the employer’s disinfection and safety plan in response to COVID-19 exposure, per CDC guidelines.

The notice must be in both English and the language understood by the majority of employees and must be provided in the manner normally used to communicate employment-related information (e.g., e-mail, text message, or personal service).

Employers must maintain records of the notifications for at least three years. Failure to comply with these notice requirements can result in civil penalties to the employer.

Mandatory Reporting

To assist California’s efforts to track COVID-19 cases, AB 685 requires employers to report COVID-19 cases to local health authorities within 48 hours of learning of an “outbreak,” as defined by the California Department of Public Health (“CDPH”). Currently, CDPH defines “outbreak” as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.

To fulfill this obligation, employers must provide local health authorities the names, numbers, occupations, and worksite of any employees related to the outbreak. Employers must also report the business address and NAICS (North American Industry Classification System) code of the worksite where the qualifying individuals work. Employers must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite impacted by the outbreak.

Health facilities, as defined by the Health and Safety Code, are exempt from these reporting requirements.

Cal/OSHA’s Authority

Finally, AB 685 strengthens Cal/OSHA’s authority to stop an employer’s operations if it determines there is an “imminent hazard” related to COVID-19. The law allows Cal/OSHA to issue citations without notice to the employer if it determines that all or part of the workplace exposes workers to the risk of COVID-19.

Please reach out to a member of our Employment Practice Group if you have any questions, and visit our COVID-19 Resource Page for more information on local and federal updates regarding COVID-19.

Sue M. Bendavid and Chrystal Ferber are employment defense attorneys.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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