California employers face new COVID-19 obligations, including exposure notices to employees and an emergency Cal/OSHA standard on the horizon

On September 17, 2020, California added more layers to its multifarious response to the COVID-19 pandemic. These new layers impose additional legal obligations on employers, both immediately and in the near future.

First, Governor Gavin Newsom signed Assembly Bill No. 685 ("AB 685") and Senate Bill No. 1159 ("SB 1159"). AB 685 requires employers to notify employees and local public health officials of COVID-19 cases in the workplace. SB 1159 creates a "disputable presumption" that employees who suffer illness or death resulting from COVID-19 contracted the virus at work, and therefore are eligible for workers' compensation. AB 685 takes effect on January 1, 2021. SB 1159 takes effect immediately. Both bills will remain in effect until January 1, 2023.

Second, the Occupational Safety & Health Standards Board voted to grant a petition to develop an emergency, temporary COVID-19 standard under California's Occupational Safety & Health Act ("Cal/OSHA"), which would be enforced through citations and penalties. The Board directed its staff to begin working with the Division of Occupational Safety and Health ("DOSH") — the agency that investigates and prosecutes alleged Cal/OSHA violations — to develop the standard on an expedited basis in time for a vote at the Board's November 19, 2020 public hearing. It is all but certain that California will have a temporary COVID-19 standard in effect before the end of the year.

Assembly Bill No. 685

AB 685 requires public and private employers to provide written notifications to employees when there is potential occupational exposure to COVID-19, and to provide notice to local public health officials when there is a COVID-19 outbreak in the workplace. Specifically, under AB 685, the employer must take all of the following actions within one business day of receiving notice of potential occupational exposure to COVID-19:

• Provide a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite within the period of time a COVID-19-positive person is infectious (as defined by the State Department of Public Health) that they may have been exposed to COVID-19. Written notice may include personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees; this notice to employees and subcontractors should not identify the name or disclose personally identifiable information of the infected person;
• Provide a written notice to the exclusive representative (e.g. a union) of the employees; AB 685 may require greater disclosure here: "the same information as would be required in an incident report in a Cal/OSHA Form 300 injury and illness log unless the information is inapplicable or unknown to the employer" which typically would include the employee's name (unless it is excepted as a privacy concern case); hopefully, Cal/OSHA will provide guidance on the scope of this disclosure obligation;
• Provide all employees who may have been exposed and the exclusive representative (if any) with information regarding COVID-19-related benefits, including, but not limited to, workers' compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions; and
• Notify all employees, and the employers of subcontracted employees, and the exclusive representative (if any) on the disinfection and safety plan that the employer intends to implement.

In addition, if an employer or representative of the employer is notified of the number of cases that meet the definition of a COVID-19 outbreak as defined by the State Department of Public Health, the employer must provide notice within 48 hours to the local public health agency in the jurisdiction of the worksite. The notice must include the names, number, occupation and worksite of the employees, including the business address and NAICS code of the worksite. Moreover, an employer that has a COVID-19 outbreak must continue to give notice to the local health department of any subsequent, laboratory-confirmed cases of COVID-19 at the worksite.

Finally, for serious COVID-19 violations, DOSH will not issue in advance its "notice of intent to issue a serious citation" on its Form 1BY, nor allow an employer the opportunity to offer rebuttal evidence in response to this notice.

Senate Bill No. 1159

SB 1159 provides that there is a "disputable presumption" that an employee's COVID-19-related illness arises out of and in the course of employment for purposes of awarding workers' compensation benefits. This presumption applies to frontline workers such as police officers, firefighters, and healthcare workers who provide direct patient care or custodial services. The presumption also applies to all California employees who: (1) tested positive during an outbreak at the employee's specific place of employment, and (2) whose employer has five or more employees. However, in order to qualify for workers' compensation benefits, all the following conditions must exist:

• The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee's place of employment at the employer's direction;
• The day on which the employee performed labor or services at the employee's place of employment at the employer's direction was on or after July 6, 2020. The date of injury must be the last date the employee performed labor or services at the employee's place of employment at the employer's direction prior to the positive test; and
• The employee's positive test occurred during a period of an outbreak at the employees specific place of employment.

Moreover, under SB 1159, when an employer knows or reasonably should know that an employee tested positive for COVID-19, the employer must report it to its workers' compensation claims administrator in writing via electronic mail or facsimile within three business days. The bill lays out hefty civil penalties for employers who fail to do so.

Emergency, Temporary Cal/OSHA Standard

From the standpoint of Cal/OSHA obligations, the debate has shifted from whether to issue an emergency COVID-19 standard to what that standard should entail. The petition which teed up the debate contained several controversial requirements, including preparation of a "Compliance Action Plan" by someone "knowledgeable in infection control principles as they apply specifically to the facility, service or operation." The Board heard from several concerned employers and their representatives that this requirement would impose a significant burden particularly on smaller employers. It is unclear whether this provision will be included in the emergency standard.

Ultimately, the standard may give employers latitude in choosing steps to take to achieve compliance; or, rather, identify specific protective measures the employers must implement. Although the Board did not tip its hand at the hearing, it may be significant that the Board also voted in favor of having an advisory committee "for the purpose of establishing reasonable and necessary improvements required to avoid serious harm, as further guidance on the prevention of workplace transmission and exposure becomes available." In other words, the emergency standard will be subject to modification as our understanding of the virus, its transmission, and mitigation evolves; it could be a prescriptive standard, but one that is not set in stone. Nevertheless, the Board is asking for updates only on four-month intervals after passage of the emergency standard, so change (if any) will not necessarily come quickly.

We will know more in November, and will provide updates as we learn of them.