On September 17, 2020, California passed sweeping legislation with regards to COVID-19 exposure in the workplace. With the signing of AB 685, Governor Newsom expanded the states authority when it comes to tracking COVID-19 cases in the workplace. Not only that, AB 685 also expands Cal/OSHA’s authority, and sets a new precedent for the delivery of Order Prohibiting Use (OPU), which is also known as a Stop Work Order. Finally, the bill greatly increases the amount of communication that is required of employers. In this article we will be covering both the increased reporting requirements, as well as the expanded OSHA powers. These rules will be in effect from January 1, 2021 until January 1, 2023.

Notice to Employees: Upon notice of a positive confirmed case, employers must:

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

Written notice may include, but is not limited to, personal service, e-mail, 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. Please see below for our sample written notices:

• Notice to Potentially Exposed Employee
• Notice to Employer of Subcontracted Potentially Exposed Employee
• Notice to Exclusive Employee Representative
• Notice to Local Health Authority

Also, employers must report any COVID-19 outbreaks, as defined as 3 probable COVID-19 cases in a 14-day period at the same worksite, to the State Public Health Department. COVID-19 outbreaks also trigger additional testing requirements of employers, as documented in our blog here. COIVD-19 fatalities must be reported to the local health department, in addition to standard Cal/OSHA reporting protocols.

Cal/OSHA changes: This ruling expands OSHA’s authority in issuing serious violations with regards to COVID-19. Previously, Cal/OSHA had to provide a “1BY” notice to employers prior to issuance of a serious citation, which defined any violations and gave the employer 15 days to respond and rebut the allegations. Now, Cal/OSHA is able to issue serious citations on the spot, removing the 1BY process. This removal of the 1BY forces employers to appeal any citations they feel are not correct.

This bill is in addition to the recent Cal/OSHA regulations which are in effect for a minimum of 6 months (November 30th 2020- May 30th 2021). Please click here to see our previous blog which covers the enhanced regulations.