By Thu Do and Diana Tsudik

Law360 (November 13, 2020, 3:52 PM EST) --

Thu Do

Diana Tsudik

As 2020 winds down — with no definitive end in sight to the pandemic — California employers must be mindful of all-new reporting obligations that require employers of all sizes to provide written notice of their industrial and nonindustrial COVID-19 cases to employees and local public health officials as well as the Occupational Safety and Health Administration.

The new requirements are mandated by California A.B. 685, which is effective Jan. 1, 2021 through Jan. 1, 2023.

The new law amends the California Labor Code in several areas requiring employers to adhere to stricter occupational health and safety rules while providing the California Division of Occupational Safety and Health, or Cal/OSHA, with expanded enforcement powers to address such standards.

Labor Code Sections 6325 and 6432 were both amended and Section 6409.6[1] was added. These changes will result in employers who fail to comply with A.B. 685 regulations subject to civil penalties and citations.

That said, A.B. 685 has a lot of moving parts and its notification requirements vary dependent on the intended recipient including:

• Employees must be notified in one business day of receiving notice of potential occupational exposure to COVID-19.[2]
  
  
• Local public health agencies must be notified in 48 hours from an outbreak.[3] This brings with it continued notice to the local health department of any subsequent, laboratory-confirmed cases of COVID-19.
  
  
• Cal/OSHA must be notified within 24 hours of hospitalization or 30 days of death.[4][5]

Employers must be diligent in their record-keeping to determine if the occupational exposure rises to the level of an outbreak and proactive in their notice to employees as well as local public health officials once they are notified of a COVID-19 case.

Notably, A.B. 685 applies whether COVID-19 is industrially contracted or not; and it applies to all employers, both public and private, except to employees who conduct COVID-19 testing or screening or provide direct patient care or treatment to positive COVID-19 patients.

Employee Notification

When the employer receives notice of potential exposure to COVID-19, written notices are required to the following groups within one business day of potential exposure to a qualifying individual:  

• Employees and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19; and
  
  
• Employee representatives, including unions and sometimes attorneys, who may represent employees. Employees and/or employee representatives regarding COVID-19-related benefits that employee(s) may receive, including workers' compensation benefits, COVID-19 leave, paid sick leave, and the company's anti-discrimination, anti-harassment and anti-retaliation policies; and employees regarding the company's disinfection protocols and safety plan to eliminate any further exposures, per Centers for Disease Control and Prevention guidelines.

Beyond this, a qualifying individual is a person who has experienced any one of the following:

• A laboratory-confirmed case of COVID-19 as defined by the California Department of Public Health — antibodies and diagnostic; 
   
• A positive COVID-19 diagnosis from a licensed health care provider;
  
  
• A COVID-19-related order to isolate from a public health official; and
  
  
• Death from COVID-19 per the county public health department or per inclusion in the COVID-19 statistics of a county.  

Additional Considerations

• An employer shall not require employees to disclose medical information unless otherwise required by law.
  

• Records of written notices (under Subdivision A) are to be kept for three years.

• No retaliation is allowed for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.
  

• Complaints about retaliation or failure to provide notices will be investigated by the Division of Labor Standards Enforcement. Notice violations may result in the issuance of citations and civil penalties.
  

Notably, written notice includes but is not limited to personal service, email or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.

Although the written notice requirement applies only to employees and subcontracted employees, employers should also consider notifying any identifiable third parties who were at the worksite during the infectious period.

This notice requirement will require employers to implement, if they do not already, a record-keeping/sign-in sheet of individuals who are at the worksite on a daily basis. This will allow for accuracy and ease in identifying individuals who are at the worksite and provide a place to cross-reference when addressing notification requirements and local reporting obligations during the infectious period.

Local Reporting Obligations

A.B. 685 requires an employer that has a sufficient number of COVID-19 positive cases that meet the definition of an outbreak as defined by the state Department of Public Health, to report prescribed information to the local public health agency in the jurisdiction of the worksite within 48 hours of learning of the outbreak.

As of Sept. 11, the California Department of Public Health defines an outbreak as occurring when three or more employees who do not live in the same household have laboratory-confirmed cases of COVID-19 within a two-week period.

That said, within 48 hours the employer shall notify the local public health agency in the worksite's jurisdiction of the number of employees who meet the definition of a qualifying individual, along with those employees' names, occupations and worksites.

The report shall include the business address and North American Industry Classification System code of the worksite; and if there is an outbreak, continuous reporting is required, as the employer shall continue to give notice of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

Further, employers are required to report positive COVID-19 cases at the worksite, as well as any employee COVID-19-related deaths to the local public health agency.

Cal/OSHA Reporting Obligations

A.B. 685 further allows Cal/OSHA to close workplaces that constitute an imminent hazard to employees due to COVID-19. Employers must be ready to act quickly if Cal/OSHA designates a worksite or portion of a worksite an imminent hazard as A.B. 685 removes some of the notice provisions that Cal/OSHA typically complies with before making a determination of imminent hazard with respect to COVID-19 cases.

This means that employers must record cases of COVID-19 if the case: (1) is confirmed as COVID-19 — generally, at least one positive test;  (2) is work-related — if there is a known exposure at work, which is vague; and (3) involves one or more of general recording criteria — treatment beyond first aid, or days away from work.

Additionally, employers must report any serious illness, serious injury or death. Serious illness includes fatalities and most inpatient hospitalizations, too. The illness must also be work-related and meet recording criteria.

Reporting is also not an admission of work-relatedness. A COVID-19 case doesn't have to be confirmed through testing and a COVID-19 case must be reported if it meets the definition of serious injury or illness irrespective of when a possible exposure occurred.

A.B. 685 also did away with the 15-day notice of a pending citation for serious violations of occupational health and safety statutes or regulation, providing employers a chance to mitigate with rebuttal evidence. Now, however, Cal/OSHA can issue citations for serious violations immediately, though employers may still appeal the citations.

With A.B. 685 comes increased risks of Labor Code Section 132a[6] and serious and willful claims under Labor Code Section 4553.1[7] if the employee can demonstrate that their employer received actual citations related to COVID-19 violations and/or the employer violated one of the provisions of the new Cal/OSHA regulations that prohibits discrimination and retaliation for reporting COVID-19 cases. 

In sum, A.B. 685 has significantly reduced time frames to allege defenses, conduct investigations and notify intended parties. Failures to comply with reporting or notification requirements are met with swift penalties and serious implications for employers. The burden of proof has also quickly shifted to employers to prove that COVID-19 isn't work-related after certain criteria are met.

Therefore, now is the time to take the steps to create and implement such reporting requirements. This should include a procedure to determine:

• Safe and effective measures to prevent and minimize the risk regarding the spread of COVID-19 at the worksite;
  
  
• Implemental disinfectant procedures upon notification of a COVID-19 exposure at the worksite;
  
  
• Notification to employees of COVID-19 exposure;
  
  
• Notification to employees of COVID-19 benefits; and most importantly
  
  
• Sufficient documents/record-keeping development to track the number of employees and individuals at the worksite on a daily basis to ensure accurate and proper compliance with the notice requirements of A.B. 685.

Employers would be well-advised to prepare for Jan. 1 now, by coordinating and developing documentation and tracking procedures as well as safety processes and notification methods to employees of COVID-19 cases and available protections and benefits, preparing sample notice letters, and coordinating with their adjusters and defense attorneys in advance of the new year.

This type of legislation, intended to protect employees and shut down worksites deemed to be an imminent hazard, has increased burdens for the employer, who are already struggling to keep their doors open and workforce employed.

What employers must be mindful of as they create plans for record-keeping is that a serious violation of A.B. 685 may be assessed a civil penalty of up to $25,000 for each such violation,[8] which is quite a significant threat, given A.B. 685 expires on Jan. 1, 2023. 

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Thu Do and Diana Tsudik are partners at Gilson Daub LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB685.

[2] Labor Code 6409.6.

[3] Labor Code 6409.6.

[4] Labor Code 6409.1.

[5] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6409.1.&lawCode=LAB.

[6] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB§ionNum=132a.

[7] https://codes.findlaw.com/ca/labor-code/lab-sect-4553-1.html.

[8] 8 CCR §336(c)(1).

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