California employers already have a lot to digest after Cal/OSHA issued sweeping new safety regulations in November that include new COVID-19 reporting requirements, among other changes. Now they face additional requirements starting Jan. 1, 2021, thanks to a new law.
AB 685 expands Cal/OSHA’s authority to issue stop-work orders to workplaces it deems a COVID-19 “imminent hazard.” It also requires employers to send notices to a number of parties (state agencies, local authorities, employees, contractors, and more) if they have coronavirus infections in any of their facilities.
The law, which comes into effect on January 1, covers a lot of territory and employers need to understand their obligations if any of their employees test positive to avoid penalties, fines, or possible legal action. Here are the main points to be aware of:
Employee notice requirements
The new law requires employers who learn of an employee’s COVID-19 infection to send out notifications to all employees and subcontracted workers who were on site at the same time as the infected person. An infected employee (or qualifying individual in the law) is defined as any person who has:
- A laboratory-confirmed case of COVID-19,
- A positive COVID-19 diagnosis from a licensed health care provider,
- A COVID-19-related order to isolate provided by a public health official, or
- Died due to COVID-19, as determined by a county public health department.
The notice must provide information regarding COVID-19-related benefits the employee may be eligible for under federal, state, and local laws, such as:
- Workers’ compensation benefits,
- COVID-19-related leave,
- Company sick leave,
- State-mandated leave, and
- Supplemental sick leave.
The notification must also include the employer’s COVID-19 disinfection and safety plan.
Public health agency notification
AB 685 also requires that employers notify their local public health agency within 48 hours of learning of an “outbreak” among their workers. An outbreak is defined as: At least three probable or confirmed COVID-19 cases within a 14-day period at a worksite.
Notifications must include:
- Information about the worksite ― name of company, business address, and North American Industry Classification System (NAICS) industry code.
- Names and occupations of workers with COVID-19.
- Additional information requested by the local health department as part of their investigation.
If there are additional laboratory-confirmed COVID-19 cases at the workplace, the employer will once again need to send notice to the local health department.
Expanded Cal/OSHA authority
AB 685 grants Cal-OSHA authority to close workplaces that “constitute an imminent hazard to employees” due to COVID-19.
But the stop-work order must be limited to the immediate area in which an “imminent hazard exists.” Cal-OSHA is not authorized to bar entry to any areas outside the hazard zone.
When issuing a stop-work order, the agency must post a notice in the workplace. Entry will only be permitted for cleaning, disinfecting, and eliminating the danger.
The timeline for issuing serious citations is also greatly reduced. Typically, whenever Cal/OSHA plans to issue a serious citation it has to provide notice and give the employer 15 days to provide additional evidence to refute the need for a serious citation.
For a COVID-19 serious citation, Cal/OSHA will not have to provide this notice, meaning that the employer will not have 15 days to mount a defense.
Your to-do list
You should start drafting employee COVID-19 notices, particularly what would be boilerplate information, the preamble about the outbreak as well as benefits the employees can tap.
Also, you need to be prepared to notify public health authorities if you have an outbreak.
Finally, if you are being investigated for a COVID-19-related safety violation, it would be wise to produce all backup documents to inspectors during the probe, as you won’t have the usual 15 days to mount a defense if you are cited for a serious violation.