My Employee has COVID, Who Must I Tell?
- By: Gretchen Dugan
AB 685 – COVID-19 Employer Notice and Reporting Requirements:
Signed into law on September 17, 2020, Governor Gavin Newsom set forth standards that employers must follow to provide notice to employees and report information related to COVID-19 exposures to local public health agencies.
AB 685 specifically requires employers to provide the following four notices related to potential COVID-19 exposures in the workplace, within one business day of being informed of the potential exposure:
Potential COVID-19 Exposure Notice to Employees
If an employer or the employer’s representative receives a notice of a potential exposure in the workplace by a “qualifying individual,” the employer must provide a written notice to all employees, and to the employers of subcontracted employees, who were present at the same worksite within the infectious period, stating that they may have been exposed to COVID-19.
Potential COVID-19 Exposure Notice to Exclusive Representative of Represented Employees
If the affected employees who are required to receive COVID-19 exposure notices include represented employees, the employer must send the same notice to the exclusive representative of the affected bargaining unit.
Notice of COVID-19 Related Benefits and Employee Protections
An employer must also provide all affected employees and the exclusive representative, if any, a notice of information regarding any COVID-19 related benefits or leave rights under federal, state and local laws, or pursuant to employer policy, as well as the employee’s protections against retaliation and discrimination.
Notice of Safety Plan in Response to Potential COVID-19 Exposure
The employer must notify all employees, the employers of subcontracted employees, and any exclusive representatives, of the employer’s plans for implementing and completing a disinfection and safety plan pursuant to guidelines issued by the federal Centers for Disease Control.
In addition to the above notification requirements for employees and exclusive representatives, in the event of notification of an “outbreak” the employer must also notify the local public health agency of the name, number, occupation, and worksite of employees who are established as “qualifying individuals” and also report the business address and NAICS code of the worksite where the qualifying individuals work.
AB 685 also created Labor Code section 6409.6 which has the following definitions:
A “qualifying individual” is a person who can establish any of the following requirements:
- A laboratory-confirmed case of COVID-19;
- A positive COVID-19 diagnosis from a licensed health care provider;
- A COVID-19 related isolation order issued by a public health official; or
- Death due to COVID-19 as determined by the County Public Health Department.
An “outbreak” is currently defined by the California Department of Public Health as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.”
“Worksite” means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter. In a multi-worksite environment, the employer needs only to notify employees who were at the same worksite as the qualified individual.
These new AB 685 notices and reporting requirements apply to all private and public employees, except that notification of an outbreak shall not apply to a “health facility,” as defined in Section 1250 of the Health and Safety Code, and the notification requirement shall not apply to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID-19, are persons under investigation, or are in quarantine or isolation related to COVID-19, unless the qualifying individual is an employee at the same worksite.
Failure to comply with these notice requirements may subject the employer to a civil penalty.
No personally identifiable employee information shall be subject to the California Public Records Act request or similar request, posted on a public website, or shared with any other state or federal agency.
AB 685 is effective as of January 1, 2021, so now is the time to meet with your HR and legal counsel to make sure you are set up for success when these new requirements begin.