Legal Alerts Sep 24, 2020

Employer Obligation to Report COVID-19 Exposure in the Workplace

Assembly Bill 685 Expands Cal/OSHA Authority

In one of several efforts to protect employees in the workplace from COVID-19 exposure and risk, California Gov. Gavin Newsom signed Assembly Bill 685, expanding the Division of Occupational Safety and Health’s authority and allowing the State to monitor COVID-19 cases in the workplace more closely. The law requires employers who receive “notice of a potential exposure” involving a “qualified individual” to provide various notifications to its employees and to local health agencies. AB 685 goes into effect on Jan. 1, and expires Jan. 1, 2023.
Circumstances Triggering Employer Action
“Notice of potential exposure” to a qualifying individual is what triggers an employer action under this new statute. A “qualified individual” is someone who has a laboratory-confirmed positive COVID-19 test or health care provider’s positive diagnosis, who was ordered to isolate by a public health official or who was determined by a county public health department (individually or as a reported statistic) to have died due to COVID-19. Potential exposure notice may come to an employer from a variety of sources:

  • A public health official or licensed medical provider stating that an employee was exposed to a qualifying individual at the worksite,
  • An employee (or their emergency contact) disclosing that the employee is a qualifying individual,
  • Testing protocol results or
  • A subcontracted employer sharing that a qualifying individual was on the worksite of the employer receiving notification.

There are some limited exceptions for employees whose regular duties include testing or screening for COVID-19 or who provide patient care to individuals who have, or are suspected to have, COVID-19 — unless the “qualifying individual” is another employee.
Notice to Employees
Within one business day of “notice of potential exposure” to COVID-19 in the workplace, an employer must then do the following:

  1. Provide written notice to all employees who were at the same location as the exposed individual within the infectious period. Notice must be given in the manner usually used to communicate employment-related information, such as personal service, email or text message;
  2. Provide written notice to the exclusive representative of employees;
  3. Provide all potentially exposed employees and the exclusive representative with information regarding COVID-19-related benefits that they may be entitled to, including: workers’ compensation, leave, anti-retaliation and anti-discrimination protections and
  4. Notify employees and the exclusive representative of the employer’s disinfection and safety plan pursuant to Centers for Disease Control and Prevention guidelines

Notice to Local Public Health Agency
If the number of reported cases meet the California Department of Public Health’s definition of a COVID-19 outbreak, the employer must also provide the local public health agency the following information within 48 hours:

  • Names, number, occupation and worksite of “qualifying individuals” and
  • The business address and the worksite’s NAICS code of the qualifying individuals.

A “qualifying individual” is a person who meets any of the following:

  1. Has a laboratory-confirmed COVID-19 case, as defined by the State Department of Public Health,
  2. Has a positive COVID-19 diagnosis from a licensed health care provider,
  3. Has a COVID-19-related order to isolate provided by a public health officer or
  4. Died due to COVID-19, as determined by the county public health department.

Once an outbreak exists, the employer must continue to give the local health department notice of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
For these purposes, the California Department of Public Health currently defines a “COVID-19 outbreak" a non‑health care or non-residential congregate setting workplace as: three or more laboratory‑confirmed cases of COVID-19 within a two‑week period among employees who live in different households.
No personally identifiable information is subject to a California Public Records Act request, or similar request, nor should such information be posted on a public website or shared with any other state or federal agency.
The following are exempt from reporting a “COVID-19 outbreak” to the local public health agency within 48 hours of notice:

  1. Health facilities, defined in Health and Safety Code section 1250
  2. Exposure to employees whose regular duties include testing or screening for COVID-19 or who provide patient care to individuals who have, or are suspected to have, COVID-19, unless the “qualifying individual” is another employee.

Expansion of Cal/OSHA Authority
AB 685 also provides Cal/OSHA the new authority to shut down a workplace or operation if it finds that it exposes the employees to COVID‑19 and creates an “imminent hazard.” To do so, Cal/OSHA must provide the employer with notice and post the notice in a visible place in the workplace. However, the restriction must be done in a way to not materially interrupt critical government functions essential to ensuring public health and safety functions, or the delivery of electrical power or water.
Because AB 685 does not go into effect until Jan. 1, employers have some time to ensure that their workplace is in compliance with Cal/OSHA standards and create a procedure to notify employees of potential exposures in the workplace.
Previously: Workers’ Compensation Presumption for COVID-19 Contracted in the Workplace

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

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