Assembly Bill 685 (“AB 685”), signed by the Governor on September 17, 2020, and effective on January 1, 2021, amends several provisions of California’s Health and Safety and Labor Codes in response to the COVID-19 pandemic, including exhaustive notice requirements in the event of a COVID-19 exposure, and enhanced reporting requirements to local health authorities in the event of a COVID-19 outbreak. Here’s a brief outline of the new mandates.

First, the law mandates written notification to all employees and employers of subcontracted employees following a known “potential exposure” to COVID-19 in the workplace.  Written notice must also be provided to the exclusive representatives, including unions, if any.

A “notice of potential exposure” is defined as any of the following:

  • Notification to the employer from a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite.
  • Notification to the employer from an employee or their emergency contact that the individual is a “qualifying individual.”
  • Notification through the testing protocol of the employer that the employee is a “qualifying individual.”
  • Notification to an employer from a subcontracted employer that a “qualifying individual” was on the worksite of the employer.

A “qualifying individual” means any person who has any of the following:

  • A laboratory-confirmed case of COVID-19. This is defined as a positive result on any viral test for 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.
  • Died due to COVID-19, as determined by a public health department.

Specifically, if an employer receives a notice of any potential exposure to COVID-19, the employer must take all of the actions stated below within one business day

  • Provide written notice to all employees and employers of subcontracted employees who were at the same worksite as the individual with COVID-19 within the “infectious period.”
  • Provide the potentially exposed employees with information about COVID-19-related benefits, such as workers’ compensation, leave under the FFCRA, state-mandated sick leave, or supplemental sick leave. The employer must also provide potentially exposed employees with information that the employer will not engage in any form of retaliation or discrimination due to a suspected or positive case of COVID-19 or use any of the benefits listed above. 
  • Provide employees and employers of subcontracted employees with disinfection and safety plans the employer plans to implement.

Written notices must be hand-delivered, emailed, mailed or texted, must be in English and any other applicable language where 10% or more of the employees speak that language as their primary language, and must be provided to labor representatives and subcontracted workers as well.  The method of delivery must be reasonably anticipated to be received by the employee within one business day of sending.  Employers must maintain records of written notifications for three years.

AB 685 requires that employers provide notice to all employees who were present at the same worksite as someone with COVID-19 during their “infectious period.”  The law adopts the   California Department of Public Health’s (“CDPH”) definition of “infectious period.”   For an individual who develops symptoms, the infectious period begins 48 hours before they first develop symptoms. The infectious period ends when the following criteria are met: 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. For an individual who tests positive but never develops symptoms, the infectious period for COVID-19 begins two days before the positive test and ends 10 days after the specimen for their first positive test for COVID-19 was collected.  This notice requirement essentially codifies requirements listed in the state-issued California Employer Playbook (https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf) regarding an employer’s obligations upon learning of COVID-19 cases in the workplace. 

CDPH guidance also requires employers to notify local health departments if there are three or more cases of COVID-19 in their workplace within a two-week period.  This requirement is already in effect, so employers must follow it now. 

Additionally, effective January 1, 2021, employers must report all COVID-19 “outbreaks” to their local health department within 48 hours.  A COVID-19 outbreak is defined as three or more positive cases among workers at the same worksite within a 14-day period. Please note this is a different definition of an outbreak as defined in SB 1159.  An employer that has had an outbreak has to continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. Health facilities are exempt from the reporting of outbreaks to local health departments, but must instead follow the CDPH’s reporting guidance for healthcare facilities. In the case of an outbreak, the employer must also notify the exclusive bargaining representative (union), and the notice must contain the same information required in a Cal-OSHA form 300 injury and illness log.

Initial reports to local health departments should generally include:

  • Information about the worksite including the name of the company, business address, and North American Industry Classification System (“NAICS”) industry code.
  • Names, numbers and occupations of workers with COVID-19.
  • Any additional information requested by the local health department as part of their investigation. The local health department will post the outbreak information on their website.

Finally, AB 685 gives Cal-OSHA authority to issue (1) Orders Prohibiting Use (aka “Stop Work Orders”) in certain circumstances where COVID-19 presents an imminent hazard and (2) citations alleging serious violations of health and safety requirements related to COVID-19 without giving the required 15-day pre-citation notice, essentially fast tracking the citation timeline.

The notice and reporting requirements of AB 685 are effective until January 1, 2023 and may be further extended. The California Department of Public Health has issued a memorandum to California employers with frequently asked questions on AB 685 and can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Employer-Questions-about-AB-685.aspx

ACTIONS REQUIRED:  Ensure that effective January 1, 2021, you comply with the employee notice provisions of AB 685 following a known potential exposure and provide the three required written notices to employees and employers of subcontracted employees within one business day.  Ensure that effective January 1, 2021, you report all COVID-19 outbreaks to the local health department within 48 hours. Given the stringent timeframes for compliance, employers should consider creating a COVID-19 action plan and develop written notices in advance that can be customized to quickly notify employees and the local health departments.  Silvers HR will have sample notices posted on our HR Library for our clients.

A copy of AB 685 is at:   https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB685