Employers who fail to notify employees may be cited by Cal/OSHA and incur substantial monetary penalties. 

Employers with workers in California, get ready! New reporting requirements for COVID-19 exposures at work take effect January 1, 2021. AB 685 imposes obligations for private and public employers to quickly notify employees and employers of subcontracted employees of COVID-19 exposures and to notify public health officials of outbreaks in the workplace. The new law permits the California Division of the Occupational Safety and Health Administration (Cal/OSHA) to shut down a workplace due to COVID-19.

Employers Must Notify Employees Every Time They May Have Been Exposed to COVID-19

The new law requires employers provide written notice to all employees of potential exposure to COVID-19 within one business day of the employer receiving notice of potential exposure. The obligation may arise when the employer learns of an employee diagnosis, required isolation or death due to the coronavirus.

Notice must be provided to all employees who were on the premises of the same worksite as a qualifying individual within the infectious period. A “qualifying individual” is a person who: (a) has a laboratory-confirmed case of COVID-19; (b) has been diagnosed with COVID-19 from a licensed healthcare provider; (c) has been ordered into isolation related to COVID-19 by a public health official; or (d) died due to COVID-19. A “worksite” is the building, store, facility, agricultural field or other location where the qualifying individual worked during the infectious period. Employers are not required to provide notice to employees who worked in buildings, on floors or in other locations that a qualified individual did not enter.

Notice must be provided to employees, employee representatives (including union representatives) and employers of subcontracted employees. It must include:

• Notice that the employee may have been exposed to COVID-19;
• Notice of COVID-19 related benefits to which the employee may be entitled that may include those provided by the federal Families First Coronavirus Response Act, California’s Supplemental Paid Sick Leave law, California’s mandatory paid sick leave, workers’ compensation, company sick leave or benefits available under local law;
• Notice that the employee is protected from retaliation and discrimination; and
• The company’s disinfection and safety plan per CDC guidelines.

Where known, notice should include dates, locations and titles similar to those set forth in Cal/OSHA logs of work-related injuries and illnesses, even if the employer is not required to maintain such logs. Employers are reminded to keep employee medical information confidential, except where disclosure is required by law.

Notice must be sent in the manner usually used to communicate with employees and may be by mail, email, text or in-person. Records of these notices must be kept for three years.

Employers Must Report Outbreaks to Public Health Officials Within 48 Hours

The law also imposes a separate obligation to notify local public health departments of any COVID-19 outbreak at a worksite within 48 hours of notification of an outbreak as determined by the State Department of Public Health. An “outbreak” currently is three or more laboratory-confirmed cases of COVID-19, not within the same household and not among close contacts, within a two-week period.

Notice must be provided to the local public health agency in the jurisdiction of the worksite and must include:

• The number of employees who have tested positive or have been diagnosed with, been ordered to isolate or who have died due to COVID-19;
• The name, occupation and worksite of those employees;
• The address of the worksite; and
• The NAICS code of the worksite (the federally designated code for the industry).

The obligation to report outbreaks is a continuing one. Notice of any subsequent cases at the worksite is also required.

Not all reporting requirements are the same. The definitions of “outbreak” and notification requirements under this new law differ from reporting obligations to workers’ compensation insurance carriers. It is important for employers to understand their obligations under all COVID-19 rules.

Risks of Failure to Report  

Employers who fail to notify employees may be cited by Cal/OSHA and incur substantial monetary penalties. The Department of Public Health posts outbreaks publicly on its website.

Cal/OSHA May Shut Down a Worksite for “Immediate Hazards” of COVID-19

The new law also gives Cal/OSHA authority to shut down a workplace if it believes that it constitutes an imminent hazard for spreading COVID-19. While employers are typically provided with advance notice of such a designation and the ability to demand a hearing prior to such a designation, neither is available for a COVID-19 outbreak.

There are narrow exceptions for AB 685 for health facilities, for employees who conduct COVID-19 testing or screening and in other limited circumstances. The law is set to expire December 31, 2022.

What This Means for Employers

AB 685 is only one in a series of several pieces of state legislation passed in rapid succession by the California Legislature and signed into law by Governor Newsom since the resumption of the legislative session in July 2020. A common theme in all these new laws is the rapid action required of employers in responding to potential COVID-19 exposure. California has made its intentions clear: Employers must pay attention to the pandemic, take it seriously and take all steps necessary to protect employees. Now is the time to create or update COVID-19 prevention plans, control measures, cleaning protocols and templates for responding to situations that arise. Those who are not ready or who do not take quick action may face penalties, an outbreak or potentially a state-ordered closure.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Lori Ocheltree, Brooke B. Tabshouri, or any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.