Under AB 685, employers are required to provide certain workforce notifications within one business day of receiving a “notice of potential exposure.” A “notice of potential exposure” means any of the following:
- Notification from a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite;
- Notification from an employee or his/her emergency contact that the employee is a “qualifying individual”;
- Notification through the testing protocol of the employer that the employee is a “qualifying individual”; or
- Notification from a subcontracted employer that a “qualifying individual” was on the worksite.
“Qualifying individual” includes a person who: (1) has a laboratory-confirmed positive viral test for COVID-19; (2) has a positive COVID-19 diagnosis from a licensed health care provider; (3) is ordered to isolate by a public health official; or (4) has died from COVID-19.
Within one business day of receiving a notice of potential exposure, an employer must take all of the following actions:
- Provide written notice to all employees, and to the employers of subcontracted employees, “who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed” to COVID-19. The notice should be hand delivered or sent by email or text, so long as the notice can reasonably be anticipated to be received by the employee within one business day of sending, and it must be in English and in the language understood by the majority of the employees. The notice should not share information that could identify the individual with COVID-19, although CDPH guidance indicates that the notice may inform employees of the dates that the individual with COVID-19 was at the worksite.
- Provide written notice to the exclusive representative (e.g., union representative), if any, of the employees referenced above. The written notice to the exclusive representative must contain the same information that would be required in an incident report in a Cal/OSHA Form 300 injury and illness log, unless the information is inapplicable or unknown to the employer.
- Provide employees and their exclusive representative (if any) with information regarding COVID-19-related benefits to which the employee may be entitled under federal, state, or local laws, such as workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections; and
- Inform all employees and their exclusive representative (if any), and the employers of subcontracted employees, about the disinfection and safety plan that the employer plans to implement and complete per federal Centers for Disease Control guidelines.
AB 685 defines “worksite” as “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period” but does not include buildings, floors, or other locations that the individual with COVID-19 did not enter. Furthermore, “[i]n a multiworksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.”
Under CDPH guidance, the parameters of the “infectious period” depend on whether the qualifying individual is symptomatic or asymptomatic. If symptomatic, the infectious period begins two days before they first develop symptoms, and it ends when: 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. If asymptomatic, the infectious period begins two days before and ends 10 days after the specimen for the individual’s first positive test for COVID-19 was collected.
The written notice requirements do not apply to a “health facility” (as defined in Section 1250 of the Health and Safety Code) nor to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are exposed to or test positive for COVID-19, unless the “qualifying individual” is an employee at the same worksite.
Notification to Local Health Department of an “Outbreak”
AB 685 also requires that an employer notify the local public health agency within 48 hours if the number of positive COVID-19 cases meets the definition of an “outbreak” as defined by CDPH. CDPH guidance specifies that for non-healthcare workplaces, an outbreak is defined as three or more COVID-19 cases among workers at the same worksite within a 14-day period.
This notice must include the names, number, occupation, and worksite of the employees, and the business address and NAICS code of the worksite. Subsequent laboratory-conformed cases of COVID-19 at the worksite must also be reported to the local public health agency.
Worksite Shutdowns by Cal/OSHA
Finally, AB 685 specifically authorizes Cal/OSHA to prohibit entry into a worksite that is deemed to constitute an “imminent hazard to employees” by exposing workers to COVID-19. This provision remains in effect until January 1, 2023.
Next Steps for Employers
The broad notice requirements under AB 685 may present particular challenges for employers with large workforces or large or complex worksites. Thus, employers should immediately begin planning to ensure they will be ready to comply by January 1 with the workforce and local health department notice provisions, including the strict timing requirements, and to ensure that they have implemented appropriate workplace safety protocols in accordance with CDC and state and local health guidance to reduce the risk of COVID-19 outbreaks. There are also unanswered questions and ambiguities under AB 685 that have yet to be clarified, such as whether an employer’s receipt of an unconfirmed report of a positive COVID-19 test immediately triggers the one-day notice requirement or whether employers should consider employees’ level of contact with the qualifying individual when determining which employees must receive notice of potential exposure to COVID-19.
Employers should also note that the Cal/OSHA emergency temporary COVID-19 standard, which took effect on November 30, 2020, imposes additional workforce notification requirements, as well as strict protocols that employers must follow in the event of workplace COVID-19 outbreaks. More information on the Cal/OSHA standard is here.