California Passes COVID-19 Exposure Law

Tuesday, September 22, 2020

On September 17, 2020, California Governor Gavin Newsom signed AB 685 into regulation, which matches into impact on January 1, 2021. The regulation does two issues: (1) it creates an enforceable statewide commonplace for a way employers deal with potential publicity to COVID-19 and outbreaks of COVID-19 within the office; and (2) it expands the ability of California’s Division of Occupational Security and Well being (Cal/OSHA) to implement this commonplace and to take motion to guard staff, together with shutting down worksites deemed to be an “imminent hazard” as a consequence of COVID-19 danger. These provisions will expire on January 1, 2023.

Beneath the brand new regulation, employers are required to offer written discover to staff of a possible publicity to COVID-19 within the office. In sum, an employer is required to interact in a discover protocol if the employer is notified that: (i) an worker has COVID-19; (ii) an worker has been ordered to isolate associated to COVID-19; (iii) an worker has died from COVID-19; or (iv) an worker or the worksite itself has been uncovered to somebody becoming the outline of (i), (ii) or (iii). The next Incessantly Requested Questions are supplied to information employers via how the brand new regulation would require employers to deal with a possible publicity state of affairs, and to elucidate the brand new authority of Cal/OSHA’s enforcement powers.

IN DEPTH

EMPLOYER NOTICE AND REPORTING REQUIREMENTS REGARDING COVID-19 EXPOSURE IN THE WORKPLACE (EFFECTIVE 1/1/2021)

The brand new regulation requires an employer to offer sure notices as soon as the employer has “discover of potential publicity” to COVID-19.

What does it imply to have “discover of potential publicity” to COVID-19?
An employer is taken into account to have “discover of potential publicity” to COVID-19 when:

A public well being official or licensed medical supplier notifies the employer that an worker was uncovered to a Qualifying Particular person;

An worker (or their emergency contact) notifies the employer that the worker is a Qualifying Particular person;

The testing protocol of the employer reveals that the worker is a Qualifying Particular person; or

A subcontracted employer notifies the employer {that a} Qualifying Particular person was on the worksite of the employer receiving notification.

What’s a Qualifying Particular person?
Somebody is a Qualifying Particular person in the event that they:

Have a laboratory-confirmed case of COVID-19;

Are recognized with COVID-19 by a licensed well being care supplier;

Are underneath an COVID-19-related order to isolate supplied by a public well being official; or

Have died as a consequence of COVID-19 as decided by the county public well being division.

If a Qualifying Particular person is recognized and the employer has discover of a possible publicity, the employer’s obligation to offer discover to the workforce is triggered.

How should the employer give discover?
The discover have to be written and given in a fashion the employer usually makes use of to speak employment-related info. For instance, if the employer frequently communicates office updates to staff by way of electronic mail, the discover have to be supplied by way of electronic mail.

Who have to be notified?
Discover have to be supplied to all staff who had been on the premises on the identical worksite because the qualifying particular person inside the Infectious Interval. Presently, the California Division of Public Well being defines the Infectious Interval as 14 days, together with, at a minimal, the 48 hours earlier than the person developed signs. The regulation doesn’t deal with when the Infectious Interval begins for asymptomatic people so in these circumstances an employer might ask the Qualifying Particular person contact tracing questions to find out when the person first got here into contact with a COVID-19-positive particular person.

Moreover, employers should notify the worksite’s native public well being division of COVID-19 outbreaks (at present outlined by California State Division of Public Well being to be three or extra circumstances in a 14-day interval) inside 48 hours of studying of the outbreak. Employers should present the general public well being division the names, numbers, occupations and worksite(s) of all people who’re Qualifying People, in addition to the enterprise deal with and North American Business Classification System (NAICS) code of the worksite(s) of the Qualifying People. An employer experiencing outbreak should proceed to provide discover to the native well being division of any subsequent laboratory-confirmed circumstances of COVID-19 on the worksite(s).

When should discover be supplied to the possibly affected staff?
Discover have to be supplied to the possibly affected staff inside one enterprise day of employer discovering out about such potential publicity.

What info is required to be within the discover to the possibly affected staff?
Employers should present all staff who’ve been doubtlessly uncovered (and their unique consultant, if any) with info associated to COVID-19 advantages to which the worker could also be entitled underneath regulation, together with, however not restricted to: employees’ compensation, COVID-19-related depart, firm sick depart, state-mandated depart, supplemental depart or negotiated depart provisions, in addition to anti-retaliation and anti-discrimination protections. Employers shouldn’t embrace the identify of, or any figuring out info associated to, the Qualifying Particular person (or of the worker uncovered to the Qualifying Particular person, if relevant).

What are the recordkeeping necessities?
Employers should preserve data of written notifications of COVID-19 potential publicity or outbreaks for a minimum of three years. This info needs to be saved in a confidential method, much like the way through which the employer maintains different confidential worker medical info.

CAL/OSHA’S EXPANDED POWER TO ENFORCE SAFETY VIOLATIONS (EFFECTIVE 1/1/2021)

Cal/OSHA is answerable for defending and bettering the well being and security of employees all through California. The group is tasked with imposing office security requirements via complaints and accident investigations, focused and programed inspections, and citations and orders to take particular motion, amongst different issues.

AB 685 expands Cal/OSHA’s energy to implement security violations via speedy worksite shutdowns and citations.

Can Cal/OSHA require a enterprise to close down as a consequence of COVID-19-related security violations? In that case, what situations should exist for Cal/OSHA to do that?
Sure. Cal/OSHA is permitted to behave when it believes staff are uncovered to COVID-19 in such a fashion as to represent an “imminent hazard.”

Three situations have to be met earlier than a hazard turns into an imminent hazard:

There have to be a menace of loss of life or severe bodily hurt.

For a well being hazard, there have to be an inexpensive expectation that poisonous substances are current and publicity to them will shorten life or trigger important discount in bodily or psychological effectivity.

The menace have to be imminent or speedy. Which means loss of life or severe bodily hurt might happen inside a short while, for instance, earlier than Cal/OSHA might examine the issue.

If an “imminent hazard” is discovered by Cal/OSHA, will it shut down the complete worksite?
Not essentially. Cal/OSHA should restrict its motion or restriction on the employer’s worksite to the speedy space the place the hazard was recognized. Cal/OSHA is permitted to:

Prohibit entry or entry to a worksite;

Prohibit efficiency of an operation or course of at a worksite; or

Require posting of an imminent hazard discover on the worksite.

When is a Basic Violation, when does it flip right into a Severe Violation and what does that imply?
Beneath Cal/OSHA, a Basic Violation is a violation which is particularly decided to not be of a severe nature, however has a relationship to occupational security and well being of staff. (eight CCR §334(b).) A Severe Violation exists the place there’s a practical chance that loss of life or severe bodily hurt might consequence from the precise hazard created by the violation. (eight CCR §334(c)(1).) An precise hazard might embrace a severe publicity exceeding a longtime permissible publicity restrict or the existence within the place of employment of a number of unsafe or unhealthful practices, means, strategies, operations, or processes which have been adopted or are in use. (eight CCR §334(c)(2)(A)-(B).)

How is a COVID-19 Severe Violation totally different from different Severe Violations underneath Cal/OSHA?
In non-COVID-19 circumstances, if Cal/OSHA establishes a presumption of a Severe Violation, the employer has 15 days previous to Cal/OSHA issuing a Severe Violation to rebut the quotation. Throughout that point the employer might rebut the presumption with proof and set up {that a} violation just isn’t severe by demonstrating that the employer didn’t know and couldn’t, with the train of cheap diligence, have identified of the presence of the violation. (eight CCR §334(c)(3).)

AB 685 accelerates Cal/OSHA’s quotation course of and permits the company to situation a quotation alleging a Severe Violation instantly, with out soliciting rebuttal info from the employer or notifying the employer 15 days prematurely.

What are the financial penalties related to a Severe Violation?
A Severe Violation could also be assessed a civil penalty of as much as $25,000 for every such violation. (eight CCR §336(c)(1).)