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 on January 1, 2021, Assembly Bill 685 (AB685) imposes new notice and reporting obligations for COVID-19 exposure in the workplace. 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 subcontracted employees who were at the worksite within the infectious period. As a best practice, we recommend employers to notify any 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 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 Exposure 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. 

Changes to The Normal Cal/OSHA Process

AB685 expands Cal/OSHA’s authority to issue Orders Prohibiting Use (OPU), or Stop Work Orders, for workplaces that pose a risk of an “imminent hazard” relating to COVID-19, essentially fast-tracking the timeline for issuing serious citations.  

It gets rid of the “1BY” notice issued by the agency of 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.  

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 to ensure that once they receive a citation, they immediately evaluate the classifications, allegations, and proposed penalties. Employers should also be vigilant in implementing their COVID policies 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 specific measures, like social distancing and wearing protective gear. The plan should also how the employer will enforce its procedures, provide training, conduct inspections, and review its processes for effectiveness. 

Next Steps for Employers

Although AB685 doesn’t go into effect until January 1, 2021, we recommend employers to 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.

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