AB 685: Clarifying COVID-19 workplace regulations

Assembly Bill 685, effective as of Jan. 1, includes two facets: It codifies an employer's reporting requirements in the event of COVID-19 infections at the workplace and clarifies Cal/OSHA's authority to cite and shut down worksites violating COVID-19 safety requirements.

The reporting portion of the bill largely codifies requirements already listed in the California COVID-19 Employer Playbook -- a compilation of COVID-19 safety guidelines for employers issued by the California Department of Public Health and governor's office. AB 685 clarifies that notice and reporting requirements are mandatory, specifies the content and timing of the notices, and imposes penalties for violations.

Reporting Requirement

The first obligation is triggered when an employer receives notice of potential exposure of COVID-19 at the workplace. Upon receiving such notice, an employer must take the following steps within one business day:

• Provide written notice to all employees and employers of subcontractors who were at the same worksite as the individual with COVID-19 within the 48 hours before the individual began showing symptoms or tested positive;

• Provide employees and employers of subcontractors with the disinfection and safety plan the employer plans to implement;

• Provide the potentially exposed employees with information about COVID-19-related benefits; and

• Provide notice to union representatives, if applicable.

If the employer learns of a COVID-19 "outbreak," within 48 hours, the employer shall notify the local public health agency of the names, number, occupation and worksite of individuals with COVID-19. AB 685 follows the State Department of Public Health's definition of "outbreak," which is currently defined as three or more laboratory-confirmed cases of COVID-19 in a two-week period. The employer must keep a record of all notices for at least three years.

Cal/OSHA

AB 685 also clarifies Cal/OSHA's authority with respect to COVID-19-related violations. Under its current authority, Cal/OSHA has the power to shut down a worksite if it presents an "imminent hazard," which is a "hazard which could reasonably cause death or serious physical harm immediately or before the imminence of the hazard can be eliminated through regular Cal/OSHA enforcement procedures." AB 685 clarifies that employees' exposure to COVID-19 in the workplace could rise to the level of an "imminent hazard" under some circumstances, but does not provide further guidance on what those circumstances include. Following a Cal/OSHA shut down, a worksite cannot reopen until the agency determines that the imminent hazard has been eliminated, but the new law does not explain what this means in the COVID-19 context. Cal/OSHA currently also has authority to issue a citation for a "serious violation" at the workplace, which is defined as the "realistic possibility that death or serious physical harm could result from the actual hazard created by the violation." Under existing law, Cal/OSHA must notify an employer of a pending citation and provide the employer 15 days to submit evidence in its defense before issuing a citation for a serious violation. AB 685 eliminates this notice period for COVID-19-related serious violations.

The new Cal/OSHA provisions are set to be repealed on Jan. 1, 2023.

Wendy M. Lazerson is the co-chair of Sidley Austin LLP's Labor and Employment international practice group and a partner in the firm's San Francisco and Palo Alto offices. She can be reached at wlazerson@sidley.com.

Galit A. Knotz is counsel in Sidley Austin LLP's L.A. office. She can be reached at gknotz@sidley.com.

Abigail Hudson is an associate in Sidley's L.A. office and part of the firm's Labor, Employment and Immigration practice. She can be reached at abigail.hudson@sidley.com.

This article has been prepared for informational purposes only and does not constitute legal advice. The content therein does not reflect the views of the firm.