Courtesy of: Chris Cianci, Senior Associate Lagasse Branch Bell + Kinkead 213-766-4266 | firstname.lastname@example.org
With the new year upon us, I know many people are eager to get back to some semblance of normalcy and, in particular, back into our workspace with our employees or co-workers. However, with COVID-19 cases spiking in Los Angeles – and expected to increase this month – it is important for all employers to be aware of the new laws on COVID-19 in the workplace.
AB685, which passed at the end of last year, has taken effect as of January 1, 2021 and will remain in place until January 1, 2023. AB685 expands California employers’ training, notice, and reporting obligations related to COVID-19 and allows for stricter enforcement of Cal/OSHA’s existing regulations for COVID-related violations.
Below is a summary of these laws, and attached are form notices for use by you and your clients
AB 685 takes effect on January 1, 2021 and will remain in place until January 1, 2023.
(1) Employers are required to notify all employees at a worksite of potential exposures, COVID-19-related benefits and protections, and disinfection and safety measures that will be taken at the worksite in response to the potential exposure.
(2) Employers are required to notify local public health agencies of all workplace outbreaks.
(3) Cal-OSHA can issue an Order Prohibiting Use (OPU) to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19.
(4) Cal-OSHA can issue citations for serious violations related to COVID-19 without giving employers 15-day notice before issuance.
- Employee Notice Requirements:
When an employer becomes aware of a person who was on the premises at a worksite who was infectious with COVID-19 or who was subject to a COVID-19-related quarantine order, the employers must immediately (within one business day of becoming aware) provide three categories of written notices to all employees and the employers of subcontracted employees at that worksite:
1. Notice of Occurrence: A report informing the employees they were on the premises at the same worksite as a person who was infectious with COVID-19 or who was subject to a COVID-19-related quarantine order.
2. Notice of Rights: COVID-19-related benefits to which the employees may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as antiretaliation and antidiscrimination protections of the employee.
3. Notice of Plan: The disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control and Prevention.
Written notice should be the manner the employer normally uses to communicate employment-related information and may include, but is not limited to, personal service, email, 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. Further, employers are required to keep records of the written notices provided to employees for at least three years.
Worksite means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter. In a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.
- Local Public Health Agency Outbreak Reporting:
If an employer has an outbreak in its workforce it must notify the local public health agency in the jurisdiction within 48 hours and provide the following information for all qualifying individuals at the worksite: names, number, occupation and worksite. Employers must also report the business address and NAICS industry code of the worksite where the infected or quarantined individuals work. An employer that has an outbreak subject to these provisions must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
An outbreak occurs if there are three or more probable or confirmed COVID-19 cases within a 14-day period in people who are epidemiologically-linked in the setting, are from different households, and are not identified as close contacts of each other in any other case investigation.
A qualifying individual is defined as any person who (1) has a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a licensed health care provider, (3) a COVID-19-related order to isolate provided by a public health official, or (4) died due to COVID-19, in the determination of a county public health department or “per inclusion in the COVID-19 statistics of a county.” The employer must also continue to inform the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
- Cal-OSHA Workplace Closures for Imminent Hazard to Employees:
Cal-OSHA can close workplaces that constitute an imminent hazard to employees due to COVID-19. The closure of a workplace must be limited to the immediate area that the imminent hazard exists, and Cal-OSHA cannot prohibit entry to any areas that are outside of the hazard area. Cal-OSHA must post a notice in a conspicuous place at the place of employment making this determination, which will be removed by Cal-OSHA when the hazard is removed.
Entry will still be permitted for eliminating the dangerous condition. Some of the notice provisions that Cal-OSHA usually must comply with before making a determination that a work environment constitutes an imminent hazard have been removed for closures related to COVID-19, so employers must be prepared to act immediately if Cal-OSHA designates a worksite or portion of a worksite as a hazard area due to COVID-19.
- Cal-OSHA Citations:
Previously, Cal-OSHA could issue citations for serious violations with at least 15 days of notice. Now, Cal-OSHA can more quickly issue citations for serious violations related to COVID-19, and this law temporarily removed the possibility of a negative inference being drawn if Cal-OSHA does not send a pre-citation notice to the employer at least 15 days prior to issuing a citation for a serious violation related to COVID-19.
There is a rebuttable presumption that a serious violation exists in a place of employment if the Cal-OSHA demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. The demonstration of a violation by the Cal-OSHA is not sufficient by itself to establish that the violation is serious. The actual hazard may consist of, among other things: (1) A serious exposure exceeding an established permissible exposure limit; or (2) 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.
CAL/OSHA EMERGENCY TEMPORARY STANDARDS
California approved emergency temporary Cal/OSHA standards on COVID-19 infection prevention on November 30, 2020.
COVID-19 Prevention Program
The Cal/OSHA Emergency Temporary Standards (ETS) require employers to establish, implement, and maintain an effective written COVID-19 Prevention Program (CPP):
1. Identifying and evaluating employee exposures to COVID-19 health hazards.
2. Implementing effective policies and procedures to correct unsafe and unhealthy conditions (such as safe physical distancing, modifying the workplace and staggering work schedules).
3. Providing and ensuring workers wear face coverings to prevent exposure in the workplace.
Further, the employer must provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employeesmay be entitled to under applicable federal, state, or local laws. Cal/OSHA provided a model CPP that employers can customize to meet these new requirements.
Under the ETS when there are multiple COVID-19 infections and COVID-19 outbreaks, employers must follow the requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period). This is similar to the notice requirements described in AB 685 above.
Testing for Exposed Employees
Also under the ETS, employers must provide offer COVID-19 testing at no cost to their employees during their working hours who had potential COVID-19 exposure in the workplace and provide them with the information on benefits.
Reporting & Recordkeeping
The ETS obligates employers to contact the local health department immediately, but no longer than 48 hours, after learning of three or more COVID-19 cases to obtain guidance on preventing the further spread of COVID-19 within their workplace. Again, this is the same as the requirement under AB 685 above. Employers must maintain a record of and track all COVID-19 cases, while ensuring medical information remains confidential. These records must be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed. When a COVID-19-related serious illness (e.g., COVID-19 illness requiring inpatient hospitalization) or death occurs, the employer must report this immediately to the nearest Cal/OSHA enforcement district office.