Effective January 1, 2021, employers that receive notice of a potential exposure to COVID-19 at their work site will be required to give notice to affected employees, and in some instances, local health authorities. The notice requirements in AB 685 apply to all public and private employers in California.
How is the Duty to Notify Employees Triggered?
The employer must notify employees when it learns that an individual (either an employee or non-employee) has been at the work site and has tested positive (including employer testing) for or been diagnosed with COVID-19, has died of COVID-19, or been directed to quarantine by a public health official. Learning an individual has symptoms, or may have been exposed to a COVID-19 positive individual, does not by itself trigger the duty to give notice. The individual must have been at the work site during his/her infectious period, which is currently defined as the 48 hours before the individual began experiencing symptoms (or if asymptomatic, tested positive). If the individual is working at home, or was off work during the infectious period and therefore could not have created an exposure to employees, no notice is required
Who Must be Notified?
All employees at the work site, and any subcontractor that had employees working at the work site, that were potentially exposed. Work site means the particular building or floor where the infected individual entered, so notice is not required for employees at other locations, or other buildings or floors within the work site. In addition, unionized employers must notify the union and provide them the same information as required on OSHA 300 logs for work related injuries.
How Must Notice Be Given?
Notice must be providing in writing to each individual within one business day of learning of potential exposure. Posting is not a sufficient communication; instead, notice should be accomplished using the usual methods the employer uses for communication, whether written memo, email, or text messaging. The contents of the notice are not prescribed in the legislation, but it should be sufficient to state that “a COVID-19 infected individual (no names) visited the work site within the last 48 hours, which may have potentially exposed employees,” and then provide instructions to employees on self monitoring for symptoms, staying home if any symptoms appear, testing, and following all guidelines on hygiene, distancing, masks, etc.
When Must Notice Be Provided to Public Health Agencies?
If the employer experiences an outbreak, which is currently defined as positive test results or diagnosis of three or more employees who live in separate households within a two week period, notice must be given to the County public health agency within 48 hours of determination that an outbreak has occurred. The names, number, occupation, and worksite of the infected employees must be included in the notice.
Does the Employer Have to Maintain Records of Notifications?
All records of notifications to employees must be kept for at least three years, either in writing or electronically.
What Should be Done Now to Prepare?
- A person within the organization should be designated as responsible for receiving all information on infections and coordinating the required notices
- Managers should be briefed on procedures if they learn of an infection among their work group
- Any subcontractors or temporary employment agencies should be briefed on reporting infections among their employees and procedures for giving notice
- A template notice to employees and the public health agency should be prepared
- All COVID-19 prevention plans should be reviewed and updated where necessary to reflect the new requirements and insure adequate procedures are in place to mitigate the effects of exposure, such as disinfection, temporary closure of work spaces, increased social distancing measures, etc.
If you have any questions or need assistance preparing for these new requirements, please contact the leader of our labor and employment practice, Erick Becker. Cummins & White will also be hosting a webinar in early November regarding California’s new COVID-19 requirements for employers, please look for the invite coming shortly.