Introduction
Employer notice and reporting requirements regarding COVID-19 exposure in workplace
Cal/OSHA's expanded power to enforce safety violations​


Introduction

On 17 September 2020 California Governor Gavin Newsom signed Assembly Bill (AB) 685 into law, which will come into effect on 1 January 2021. The law:

  • creates an enforceable state-wide standard for how employers should handle potential exposure to COVID-19 and outbreaks in the workplace; and
  • expands the power of California's Division of Occupational Safety and Health (Cal/OSHA) to enforce this standard and take action to protect employees, including shutting down worksites deemed to be an 'imminent hazard' due to COVID-19 risk.

These provisions will expire on 1 January 2023.

Under the new law, employers must provide written notice to employees of a potential exposure to COVID-19 in the workplace. In sum, employers must engage in a notice protocol if they are notified that:

  • an employee has COVID-19;
  • an employee has been ordered to isolate due to COVID-19;
  • an employee has died from COVID-19; or
  • an employee or the worksite has been exposed to someone fitting the description of the above points.

The following FAQs highlight how employers should handle a potential exposure scenario and explain the new authority of Cal/OSHA's enforcement powers under the new law.

Employer notice and reporting requirements regarding COVID-19 exposure in workplace

The new law requires employers to provide certain notices once they have 'notice of potential exposure' to COVID-19 (effective as of 1 January 2021).

What does 'notice of potential exposure' to COVID-19 mean?
Employers are considered to have 'notice of potential exposure' to COVID-19 when:

  • a public health official or licensed medical provider notifies them that an employee has been exposed to a 'qualifying individual' (defined below);
  • an employee (or their emergency contact) notifies them that the employee is a qualifying individual;
  • their testing protocol reveals that an employee is a qualifying individual; or
  • the employer of subcontracted employees notifies them that a qualifying individual was on the employer's worksite receiving notification.

Who are qualifying individuals?
Someone is a 'qualifying individual' if they:

  • have a laboratory-confirmed case of COVID-19;
  • have been diagnosed with COVID-19 by a licensed healthcare provider;
  • are under an COVID-19-related order to isolate provided by a public health official; or
  • have died due to COVID-19 as determined by the county public health department.

If a qualifying individual is identified and the employer has notice of a potential exposure, the employer's obligation to provide notice to the workforce is triggered.

How must employers give notice?
The notice must be written and given in the manner in which the employer normally uses to communicate employment-related information. For example, if the employer regularly communicates workplace updates to employees via email, the notice must be provided via email.

Who must be notified?
Notice must be provided to all employees who were on the premises at the same worksite as the qualifying individual within the infectious period. At present, the California Department of Public Health defines the 'infectious period' as 14 days, including, at a minimum, the 48 hours before the individual developed symptoms. The law does not address when the infectious period begins for asymptomatic individuals so in such cases employers may ask the qualifying individual contact-tracing questions to determine when they first came into contact with a COVID-19-positive individual.

In addition, employers must notify the worksite's local public health department of COVID-19 outbreaks (at present defined by the California Department of Public Health to be three or more cases in a 14-day period) within 48 hours of learning of the outbreak. Employers must provide the public health department with the names, numbers, occupations and worksites of all individuals who are qualifying individuals, as well as the business address and North American Industry Classification System code of the worksites where the qualifying individuals were present. Employers which experience an outbreak must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

When must notice be provided to potentially affected employees?
Notice must be provided to potentially affected employees within one business day of the employer finding out about such potential exposure.

What information must be in the notice to potentially affected employees?
Employers must provide all employees who have been potentially exposed (and their exclusive representative, if any) with information relating to COVID-19 benefits to which the employee may be entitled under law, including:

  • workers' compensation;
  • COVID-19-related leave;
  • company sick leave;
  • state-mandated leave;
  • supplemental leave or negotiated leave provisions; and
  • anti-retaliation and anti-discrimination protections.

Employers should not include the name of, or any identifying information relating to, the qualifying individual (or of the employee exposed to the qualifying individual, if applicable).

What are the record-keeping requirements?
Employers must maintain records of written notifications of COVID-19 potential exposure or outbreaks for at least three years. This information should be kept in a confidential manner, similar to the manner in which the employer maintains other confidential employee medical information.

Cal/OSHA's expanded power to enforce safety violations

Cal/OSHA is responsible for protecting and improving the health and safety of workers throughout California. The organisation is tasked with enforcing workplace safety standards through complaints and accident investigations, targeted and programmed inspections and citations and orders to take special action, among other things.

AB 685 expands Cal/OSHA's power to enforce safety violations through immediate worksite shutdowns and citations (effective 1 January 2021).

Can Cal/OSHA require businesses to shut down due to COVID-19-related safety violations? If so, what conditions must exist for Cal/OSHA to do this?
Yes, Cal/OSHA is authorised to act when it believes that employees are exposed to COVID-19 in such a manner as to constitute an 'imminent hazard'.

Three conditions must be met before a hazard becomes an imminent hazard:

  • There must be a threat of death or serious physical harm.
  • For a health hazard, there must be a reasonable expectation that toxic substances are present and exposure to them will shorten life or cause significant reduction in physical or mental efficiency.
  • The threat must be imminent or immediate. This means that death or serious physical harm could occur within a short time, for example, before Cal/OSHA could investigate the problem.

If Cal/OSHA finds an imminent hazard, will it shut down the entire worksite?
Not necessarily, Cal/OSHA must limit its action or restriction on an employer's worksite to the immediate area in which the hazard was identified. Cal/OSHA is authorised to:

  • prohibit entry or access to a worksite;
  • prohibit performance of an operation or process at a worksite; or
  • require posting of an imminent hazard notice at the worksite.

What is a general violation, when does it turn into a serious violation and what does that mean?
Under Cal/OSHA, a 'general violation' is a violation which is specifically determined not to be of a serious nature but has a relationship to employees' occupational safety and health (Section 334(b), Title 8 of the California Code of Regulations (CCR)). A 'serious violation' exists where there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation (Section 334(c)(1), Title 8 of the CCR). An actual hazard may include a serious exposure exceeding an established permissible exposure limit or the existence in the place of employment of one or more unsafe or unhealthful practices, means, methods, operations or processes that have been adopted or are in use (Section 334(c)(2)(A)-(B), Title 8 of the CCR).

How do COVID-19 serious violations different from other serious violations under Cal/OSHA?
In non-COVID-19 cases, if Cal/OSHA establishes a presumption of a serious violation, employers have 15 days prior to Cal/OSHA issuing a serious violation to rebut the citation. During that time, employers may rebut the presumption with evidence and establish that a violation is not serious by demonstrating that they did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation (Section 334(c)(3), Title 8 of the CCR).

AB 685 accelerates Cal/OSHA's citation process and allows the agency to issue a citation alleging a serious violation immediately, without soliciting rebuttal information from employers or notifying them 15 days in advance.

What are the monetary penalties associated with serious violations?
A serious violation may be assessed a civil penalty of up to $25,000 for each such violation (Section 336(c)(1), Title 8 of the CCR).

For further information on this topic please contact Michelle Strowhiro at McDermott Will & Emery's Los Angeles office by telephone (+1 310 277 4110) or email ([email protected]). Alternatively, contact Saniya Ahmed at McDermott Will & Emery's San Francisco office by telephone (+1 628 218 3800) or email ([email protected]). The McDermott Will & Emery website can be accessed at www.mwe.com.