In 2021, there are new updated employment Laws that impact California employers. To shed light on these regulations, our 2021 Employment Law series is designed to help employers navigate these significant changes so they can stay compliant with California law and thrive.

As COVID-19 cases continue to increase, employers need to be more careful when keeping their businesses open and allowing face-to-face interactions.  On September 17, 2020, two new pieces of legislation that affect how employers address COVID-19 in the workplace were passed. One is Assembly Bill 685 (AB685), which aims to better protect non-remote employees from COVID-19 exposure and allows California to track COVID-19 cases in the workplace more closely. Here is what AB685 is and what it means for your business.

What is AB685?

Effective January 1, 2021, Assembly Bill 685 (AB685) is intended to better protect non-remote workers from exposure to COVID-19. It allows for the state of California to track COVID-19 cases in the worksite more closely through employer notice and reporting obligations. Here are the changes employers should prepare for:

New Notice Requirements

AB685’s new notice requires employers to provide the following notices within one business day of a “potential exposure” due to a positive confirmed case of COVID-19 in the workplace:

• Provide written notice to “all employees,” and employers of the dates that employees or subcontracted employees, with confirmed cases of COVID-19 were at the worksite within the infectious period. As a best practice, we recommend employers notify any third parties who were at the worksite during the infectious period.
• Provide written notice of the location of the exposure including the department, building, or other area, but not so specific that specific employees with COVID-19 can be identified.
• Provide written notice to employees and/or employee representatives regarding COVID-19-related benefits available, 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.

New COVID-19 Outbreak Reporting

AB685 requires an employer with a large number of cases (that meet the definition of a COVID-19 outbreak) to report certain information to the local public health agency within 48 hours of learning of the outbreak.

In addition, for COVID-19-related fatalities, the employer must notify the local health department with the following information:

• Names, numbers, occupation, and worksite of employees who died due to a COVID-19 exposure; and
• The business address and North American Industry Classification System (NAICS) code of the worksite where the COVID-19-positive employee worked.

The employer must also keep a log of all the dates the notice required to be posted was available at the worksite and must allow the Labor Commissioner to access these records pursuant to the requirements set forth in Section 1174.

Changes to The Normal Cal/OSHA Process

AB685 amends the labor code to grant Cal/OSHA the authority to issue Orders Prohibiting Use (OPU), or Stop Work Orders, for workplaces where COVID-19 is an “imminent hazard”. This essentially fast-tracks the timeline for issuing serious citations.

It eliminates the “1BY” notice issued by the agency, which signals its intent to issue a “serious” citation, as well as the 15-day period that allows employers to provide additional evidence to support their defense. This means that employers no longer have the opportunity to:

• “Preview” Cal/OSHA’s serious allegations;
• Submit evidence to address those allegations; or
• Have a discussion with the Division before the serious citation is issued.

In sum, Cal/OSHA can issue citations alleging serious violations of occupational health and safety requirements related to COVID-19 without warning or a 15-day “grace” period.

What does AB685 mean for employers?

Especially in light of the changes to the Cal/OSHA process, employers should closely monitor the statute of limitations and immediately evaluate the classifications, allegations, and proposed penalties once they receive a citation. Employers should also stay vigilant when implementing their COVID-19 policies in the workplace and producing the required documents to Cal/OSHA during an investigation. Even if a document request is complete, employers will not have an opportunity to raise legal defenses until after the Division issues the serious citations.

We recommend that employers create a COVID-19 “action plan” that identifies the workplace’s risks and determines how to control exposure through quantifiable measures, like social distancing and wearing protective gear. The plan should outline how the employer will enforce its COVID-19 procedures, provide training, conduct inspections, and review its processes for effectiveness so that employers can keep their work and their employees safe.

Update: As of December 2020, the FFCRA leave requirements have expired. Yet, under the Consolidated Appropriations Act, employers may voluntarily provide extended tax credits for paid sick leave and expanded family and medical leave to their employees until March 31, 2021. However, it’s important to note that this act did not extend the entitlement of eligible employees to FFCRA leave beyond December 31, 2020.

Next Steps for Employers

As the coronavirus continues to be present in California, we recommend employers consult counsel whenever:

1. There is a positive confirmed case of COVID-19; and
2. Cal/OSHA contacts them or if an inspector appears at the employer’s worksite.

COVID-19 continues to be a volatile situation and compounded with new California legislation, navigating the constantly changing legal landscape can be very complicated. If you need any assistance or guidance on the best way to approach COVID-19 in the workplace, contact Hackler Flynn & Associates.

DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.