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Not to be Overlooked: Understanding AB 685 and Preparing for an Invisible Risk

September 22, 2020

On September 17, 2020, Governor Newsom signed AB 685 into law, further expanding and solidifying legislation created in response to the COVID-19 pandemic.  The law will become effective as of January 1, 2021.

We have provided a breakdown of the law and recommendations for how our clients can best handle and prepare for the changes to Cal/OSHA regulations and procedures.

AB 685 expands both reporting and notification requirements for employers, and increases Cal/OSHA’s authority to issue Stop Work Orders and citations where it identifies hazards threatening immediate and serious physical harm related to COVID-19.   The new law amends Labor Code Sections 6325 and 6432 and adds Section 6409.6.  Employers who fail to comply with the new health and safety regulations could be subject to civil penalties and citations.

Stringent Notice Requirements Will be in Place

Under AB 685, employers must provide written notice of potential COVID-19 exposure within one day of knowledge of exposure by a “qualifying individual” as follows:

1.) Notice to employees and other subcontractor employers with employees present at the worksite in question on the date of exposure;

2.) Notice to employee representatives, such as unions and attorneys;

3.) Notice to employees regarding benefits related to COVID-19 and protections for employees against discrimination and retaliation for reporting COVID-19 cases;

4.) Notice to employees regarding disinfection protocols and safety plans to prevent further exposure, pursuant to CDC guidelines.

Who Are “Qualifying Individuals” Under AB 685?

Qualifying Individuals include:

• Those who have a laboratory confirmed case of COVID-19,

• A COVID-19 diagnosis from a licensed health care official,

• A COVID-19 related isolation order from a public health official, or

• A death due to COVID-19 confirmed by a county public health official.

“Notice” may include any written notice, such as email, text message, or personal service, so long as it can be “reasonably anticipated” that the employee will receive the notice within one business day.  Employers must keep record of the notices for at least four years.

Notice of Exposure to Public Health Agencies

In addition, employers must notify their local public health agency of an “outbreak” at the place of employment within 48 hours of knowledge of the outbreak.  As of September 11, 2020, the California Department of Public Health defines an “outbreak” as occurring when three or more employees who do not live in the same household have laboratory-confirmed cases of COVID-19 within a two-week period. Employers must continue to report positive COVID-19 cases at the worksite. Employers are further required to report any employee COVID-19 related deaths to the local public health agency.

Expansion of Cal/OSHA Authority

Cal/OSHA normally has the authority to prohibit entry to all or part of a workplace with an imminent hazard, or to order that an employer stop an operation/process that creates such a hazard.   AB 685 expands this power by allowing Cal/OSHA to prohibit entry to a workplace or part of a workplace, or prohibit an operation or process where there is a finding that the workplace, operation, or process exposes employees to a risk of COVID-19 infection.

The expanded authority is subject to some limitations and exceptions.  Cal/OSHA must provide the employer with notice any action taken under this provision and post notice of the action in a conspicuous place.  Cal/OSHA cannot impose restrictions that would interrupt “critical government functions” essential for public health and safety, or services that ensure delivery of water and power.  Further, the ability to prohibit entry into or restrict operations/process of a workplace is limited to the areas and operations/processes that pose an imminent hazard.  The provision is set to expire as of January 1, 2023 absent further action from the legislature.

Serious Violation Citations

Prior to AB 685, Cal/OSHA notified employers of an alleged violation 15 days before issuing a citation for a serious violation of occupational health and safety statutes or regulations.  This enabled the employer to provide additional information/evidence that they took mitigating factors to rebut the potential citation.  AB 685 eliminates this requirement where the alleged violation involves COVID-19 exposure.  Cal/OSHA can now issue citations for serious violations related to COVID-19 exposure immediately.  The employer may still appeal the citation.

How Does AB 685 Intersect with SB 1159?

California lawmakers’ urgent response to the unique challenges presented by COVID-19 is evidenced in the parallels between SB 1159 and AB 685.  Specifically, employers need to be aware of and prepared for changes in the following areas:

1.) Presumptions: Both SB 1159 and AB 685 begin with the assumption that an employee contracted COVID-19 at work, when certain criteria are established, shifting the burden of proof to the employer to demonstrate otherwise.

2.) Timeframes: The employer has a limited/reduced timeframe in which to conduct investigations, provide information, and assert defenses.

3.) Notification/Reporting: Employers are charged with frequent notification to multiple parties within a short period of time when an employee or employees test positive for COVID-19. Failure to comply could have serious, negative implications for the employer.

4.) “Outbreak” as used in AB 685 is different than in SB 1159 for purposes of determining if the presumption applies. An “outbreak” requiring notification under AB 685, does not necessarily qualify as an “outbreak” under SB 1159.

5.) Potential Serious & Willful Claims: Employers may see an increase in S&W claims based on Cal/OSHA’s safety orders related to COVID-19, or evidence of actual citations related to COVID-19 violations, pursuant to Labor Code 4553.1.

6.) Potential Labor Code 132a Claims: The new laws have the potential to not only make it easier for an employee to claim a COVID-19 injury, but also to provide additional grounds for increased benefits under Labor Code §132a, assuming the employee can demonstrate that the employer violated one of the provisions of the new Cal/OSHA regulations preventing discrimination and retaliation for reporting COVID-19 cases.

Take a Proactive Approach to Mitigate Exposure

We strongly recommend early reporting and coordination with adjusters and defense attorneys when an employer receives notice than an employee has tested positive for COVID-19.  We also recommend that employers use the remaining portion of 2020 to prepare for changes set to occur as of January 1, 2021, including:

1.) Developing an effective procedure for COVID-19 notifications to employees.

2.) Developing an effective procedure to notify employees regarding COVID-19 benefits and protections.

3.) Developing safe and effective methods to prevent and minimize the risk of the spread of COVID-19 at worksites.

4.) Developing effective sanitizing and disinfecting procedures should COVID-19 exposure occur.

5.) Developing effective procedures to document and track information related to any COVID-19 cases for the purpose of both complying with all notice requirements, and obtaining information needed to defend against any workers’ compensation claims, S&W claims, and Cal/OSHA citations.

As with any change to the law, knowledge and preparation will ensure success in navigating and responding to claims.

Written by:

Kristin L. Bergesen, Esq. of our LFLM-Sacramento Office

Laughlin, Falbo, Levy & Moresi, LLP.