On the Horizon – CA Assembly Bill 685

a long road with a mountain in the background

On September 17, 2020 Governor Newsom signed Assembly Bill 685 (AB 685) in an effort to keep non-remote employees safe from exposure to COVID-19. The law will take effect on January 1, 2021 and expands California’s Occupational Safety and Health Administration (Cal-OSHA) authority to issue Orders Prohibiting Use (OPU) or Stop Work Orders for workplaces that are deemed to pose a risk of “imminent hazard” relating to COVID-19. The law also increases the employer’s responsibility of providing written notice to all employees that were at a worksite within an infectious period and had a possibility of exposure as well as expanding reporting requirements to local and state authorities in the event of an outbreak. 

Notice Requirements

· Employers are required to take the actions below within one business day of potential exposure that is based on a positive COVID-19 test result in the workplace:

· Written notice must be provided to all employees, and the employers of any sub-contracted employees who were at the worksite within the infectious period and had the possibility of exposure;

· Written notice must be provided to employee representatives to include but not limited to, unions and attorneys that may represent the employees;

· Written notice must be provided to employees and/or their representatives regarding any and all COVID-19 related benefits that the employees may be entitled to. Including but not limited to, workers’ compensation benefits, COVID-19 leave, paid sick leave as well as company policies on anti-discrimination, anti-harassment and anti-retaliation; and

· Written notice must be provided on the company’s disinfection protocols and procedures and safety plans to eliminate any further risk of exposure per the CDC guidelines.

Acceptable forms of written notice are (but not limited to) personal service, e-mail, mail or text message if it can be reasonable anticipated that employees will receive such notification within one business day and must be provided in both English and the language that the majority of the employee population understands. 

Reporting Requirements

Within 48 hours of a COVID-19 outbreak as defined by the State Department of Public Health (found here), and employer is required to report the information to the local public health agency. If a COVID-19 related death occurs the employer is required to report the following information to the local health department:

· Employee name(s);

· Total number(s) of deaths;

· Occupation(s); 

· Worksite(s) to include address(es); and

· North American Industry Classification System (NAICS) code.

An employer with a worksite death subject to these reporting requirements must also continue to provide notice to local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. 

AB 685 removes Cal OSHA’s 1BY notice that informs the employer of the intention to issues a serious citation. This notice provided employers with 15 days to review the notice, the allegations and provide additional information and/or evidence to support their defense. By removing the notice, this has fast-tracked the timeline for issuing these citations. This means that employers need to quickly and efficiently evaluated any and all classifications, allegations and proposed penalties to determine if an appeal is necessary. Employers should also take careful measures when submitting their implemented COVID-19 policy and procedure documents to Cal OSHA during an investigation as they will not have an opportunity to raise a legal defense after the document request is complete until after the Division has issued the serious citation. 

Return to Work Process

With employers knowing that this new law will take effect January 1, 2021, it is recommended that they created a Covid-19 Action Plan and identify the workplace risk and determine how to control exposure and the measures the employer will take to implement this plan (e.g. improved ventilation, personal protective gear, social distancing policies, rotating scheduling). It is likely that Cal OSHA will require that employers create a COVID-19 specific pandemic plan that will address all possible exposures, the measures the employer is taking to mitigate these risks, how they will be implemented, training and inspection and review of the process and its effectiveness. 

The Department of Labor is taking additional measures to inform employees of their rights to leaves available with relation to COVID-19 and has expanded their promotion to include a series of television, radio and social media Public Service Announcements (PCA’s) in both English and Spanish.

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