October 21, 2020

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October 21, 2020

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Assembly Bill 685 Changes Employer Notification Requirements on COVID-19 and Enhances Cal OSHA Enforcement Abilities

On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685, which requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to coronavirus (“COVID-19”).  AB 685 also authorizes the Division of Occupational Safety and Health (“Cal OSHA”) to prohibit operations, processes, and prevent entry into workplaces that it has determined present a risk of infection to COVID-19 so severe as to constitute an imminent hazard. AB 685 also authorizes Cal OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with precitation requirements.

Notification Requirements

Current California law requires employers to report certain occupational injuries and illnesses to Cal OSHA within a prescribed period. AB 685 confirms employers must report COVID-19 cases to the agency that satisfy Cal OSHA’s definition of a serious injury or illness. To satisfy this requirement, employers must have a process for employees to report potential exposures to COVID-19, having tested positive for COVID-19, or having symptoms of COVID-19. Employers must also assess any employee COVID-19 case to determine whether reporting on the case is required under Cal OSHA regulations.

Along with notifying Cal OSHA of a COVID-19 case that meets the definition of a serious occupational injury or illness, AB 685 requires employers having notice of a potential COVID-19 exposure (e.g., individual testing positive for COVID-19 was in the workplace) provide a written notice to:

  • employees and subcontractor employees who were at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result; and,

  • employees’ exclusive representative, if applicable.

This notice must be provided within one business day of the employer being notified of a potential exposure and may be done in “a manner that the employer normally uses to communicate employment-related information,” such as personal service, mail, or text message. The notice should be drafted to protect employee privacy and without disclosure of personally identifiable information or personal health information. The notice should also include information on COVID-19 benefits the employee may be entitled to and the disinfection and safety plan the employer has implemented or plans to implement in accordance with guidance from the Centers for Disease Control and Prevention (“CDC”).

An employer may also need to notify its local public health department of COVID-19 cases if the number of cases the employer knows about meets the definition of a COVID-19 outbreak as currently defined by the California State Department of Public Health. Upon an outbreak, the employer must notify its local public health department within 48 hours and be prepared to provide information on the number of COVID-19 cases at the worksite, their names, occupation, and other pertinent information. Employers will then need to keep working with the local health department and provide updates on new laboratory-confirmed COVID-19 cases.

Notifications required under AB 685 do not alter or change the work-relatedness determination for COVID-19 cases under Cal OSHA regulations. AB 685 further requires that employers maintain records of written notifications for at least three years.

Enforcement Procedures

AB 685 authorizes Cal OSHA to act when, “in its opinion,” employees are exposed to COVID-19 in such a manner as to constitute an imminent hazard by:

  • Prohibiting entry or access to a worksite;

  • Prohibiting performance of an operation or process at the worksite; or

  • Requiring posting of an imminent hazard notice at the worksite.

In treating an employer’s worksite as having an imminent hazard to COVID-19, Cal OSHA must limit its restrictions on the employer’s worksite to the immediate area where the hazard was identified. In addition, Cal OSHA’s restrictions must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” These provisions will sunset on January 1, 2023.

Cal OSHA regulations require a strict process for “serious violations,” in which Cal OSHA creates a rebuttable presumption of a serious violation following an inspection, which is then shared with the employer and the employer is given a chance to rebut. The employer’s rebuttal may then be used in defense of the violation in an appeal or hearing on the matter. Generally, this procedure is satisfied by Cal OSHA sending a standardized form containing descriptions of the alleged serious violation and soliciting information in rebuttal of the presumption to the employer at least 15 days before issuing the citation. For COVID-19 hazards and violations only, AB 685 streamlines this process by allowing Cal OSHA to issue a citation alleging a serious violation without requiring the agency to solicit information rebutting the presumption of a serious violation.  Accordingly, Cal OSHA would not need to notify an employer 15 days before issuing a serious violation related to COVID-19. This exemption will be repealed on January 1, 2023.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 261

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About this Author

Cressinda Schlag Environmental Health Lawyer Jackson Lewis Austin
Associate

Cressinda (“Chris”) D. Schlag is an associate in the Austin, Texas, office of Jackson Lewis P.C. Her practice focuses on environmental health and safety matters involving legal and regulatory compliance as well as federal and state government enforcement actions.

Before becoming an attorney, Ms. Schlag obtained a graduate degree in occupational health and safety and environmental management and worked as an environmental health and safety engineer and consultant with a variety of industries, including, for example, oil and gas, chemicals manufacturing and...

512-362-7100
Associate

Amy P. Frenzen is an Associate in the San Francisco, California, office of Jackson Lewis P.C.  Her practice focuses on representing employers in wage and hour class actions and other workplace law matters.  She is a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals (IAPP).

Prior to joining Jackson Lewis, Ms. Frenzen practiced general commercial litigation at a large national firm, including defense of software and hardware developers in contract disputes. She also worked in commercial regulatory affairs at a major biotech company, and in the Products Liability practice group of a large national firm defending pharmaceutical manufacturers against claims of unfair trade practices, off-label promotion, personal injury, and wrongful death in state and federal courts around the country. Ms. Frenzen also has experience advising large corporations, nonprofits, and political action committees on various political compliance issues, including campaign finance, lobby disclosures, and government ethics.

While pursuing her law degree, Ms. Frenzen was on the staff of the University of San Francisco Law Review and a Literary Editor of the University of San Francisco Maritime Law Journal. She also served as a legal extern with the Bay Area Air Quality Management District and the Sierra Club’s Environmental Law Program; and received a CALI Award in Administrative Law.

Practices

  • Class Actions and Complex Litigation
  • General Employment Litigation
  • Privacy, Data and Cybersecurity
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