California Governor Gavin Newsom signed Assembly Bill 685 on September 17, enhancing the state Division of Occupational Safety and Health’s (Cal-OSHA’s) enforcement of coronavirus (COVID-19) infection prevention requirements. The new law allows Cal-OSHA to issue Orders Providing Use and citations for serious violations related to COVID-19 to be issued quickly. It requires employers to report COVID-19 outbreaks to local public health officials. Employers are also required to report known COVID-19 cases to employees who may have been exposed to the virus within one business day.
In signing the bill, Governor Newsom noted that it “strengthens Cal/OSHA’s enforcement authority by providing clear authority to close a worksite due to a COVID-19 hazard and reducing the timeframe for COVID-19 citations.”
Under the new law, within one business day of receiving notice of an employee’s potential exposure to COVID-19, an employer must provide written notice to (1) all employees and the employers of subcontracted employees who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19, and (2) the exclusive representative (union) of such employees.
For employees who may have been exposed, the employer must provide those employees and their exclusive representative with information regarding COVID-19-related benefits, including workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, or supplemental sick leave, or negotiated leave provisions as well as anti-retaliation and anti-discrimination protections available to the exposed employees. In addition, the employer must notify all employees, the employers of subcontracted employees, and the exclusive representative on the disinfection and safety plan the employer intends to implement in accordance with the Centers for Disease Control and Prevention (CDC) guidelines.
The notice must be sent “in a manner the employer normally uses to communicate employment-related information.” It can be by personal service, email, or text message if it can reasonably be anticipated to be received by employees within one business day of sending. The notice must be provided in English and the language understood by the majority of the employees. Records of the notices must be maintained by the employer for at least three years from the date it was distributed.
Employers must also meet the Cal-OSHA reporting requirements for serious injury or illness.
The new law requires an employer to report to the local public health agency any COVID-19 “outbreak” within 48 hours. The employer must report the names and occupations of affected employees along with other information to the local public health agency in the jurisdiction of the worksite. Notably, the law does not define the term “outbreak,” leaving this determination to the California Department of Public Health. , The law further requires an employer that has an outbreak to continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
AB 685 authorizes Cal-OSHA to act when, “in its opinion,” if it determines that the immediate area of the place of employment presents an imminent hazard to employees due to COVID. This includes prohibiting entry or access to the worksite; prohibiting performance of an operation or process at the worksite; or requiring posting of an imminent hazard notice at the worksite.
Should Cal-OSHA determine a worksite has an imminent hazard to COVID-19, it must limit its restriction to the immediate area where the infected employee worked or the hazard was identified. In addition, Cal-OSHA’s restrictions must not prohibit the performance of any operation or process, entry into or use of a place of employment that is not exposing employees to, or is outside the area of, an imminent hazard. This prohibition cannot materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water. These provisions are effective only until January 1, 2023.
This new law also reduces the timeframe for Cal-OSHA to issue citations premised on COVID-19 violations. Cal-OSHA’s inspections may result in citations with monetary penalties. The citations classify each violation based on the severity of the hazard. Citations are classified as serious when Cal-OSHA demonstrates there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.
As a general matter, when Cal-OSHA intends to issue one or more citations for a “serious” violation, it first provides notice to the employer of its intent to issue a serious citation (the form 1BY). This 15-day notice purportedly gives the employer the opportunity to review the allegations and, where appropriate, provide additional information to Cal-OSHA. Upon satisfying this notice requirement, Cal-OSHA establishes a rebuttable presumption of certain factors underlying a serious violation. AB 685 removes this notice procedure for COVID-19-related serious citations while allowing the rebuttable presumption to remain in place. The end result is that Cal-OSHA can now more quickly issue citations for serious violations related to COVID-19, with the employer receiving no opportunity to respond before issuance. This change to Cal-OSHA is effective January 1, 2021 through January 1, 2023.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Harry I. Johnson, III
Michael D. Schlemmer