In an effort to minimize the spread of COVID-19 and better track known cases, Governor Newsom recently signed A.B. 685, which goes into effect on January 1, 2021 and will require employers to immediately notify employees of any potential COVID-19 exposure at the employer’s worksite.
When must written notice be provided?
- Within one business day after the employer is notified that a “qualifying individual” (as defined below) was present at the employer’s worksite.
- To ensure the notice is timely received, written notice should be provided to employees by e-mail, text message, or personal service.
A “qualifying individual” includes a person who has any of the following:
- A laboratory-confirmed case of COVID-19
- A positive COVID-19 diagnosis from a licensed health care provider
- A COVID-19 related order to isolate by a public health official
- Died due to COVID-19
To whom must written notice be provided?
- All employees and employers of subcontracted employees who were on the same worksite premises as the “qualifying individual” during the infectious period as defined by the Department of Public Health.
- Unions and other exclusive representatives of the employees.
- Although not required, employers should also consider providing notice to third parties who may have been exposed to the virus at the worksite (e.g., USPS mail carriers).
What must be included in the written notice?
- Information regarding COVID-19 benefits and options, including workers’ compensation, paid sick leave, COVID-specific leave, and the employer’s anti-discrimination and anti-retaliation policies.
- The disinfection and safety protocol the employer intends to implement per CDC guidelines.
- Employers must not identify the “qualifying individual(s)” by name or disclose any personal medical information to ensure compliance with privacy laws.
- The notice must be in both English and any other language understood by the majority of the employees at the worksite.
What are the potential privacy implications of the new law as applied to employers generally?
- Under the California Consumer Privacy Act (CCPA), a covered “business” is required to let employees, contractors, applicants, etc. know what personal information is collected, the purpose of collection, and how it is shared. Employers who are also covered “businesses” should revisit their CCPA employee disclosures to confirm that the collection and dissemination of this health information is properly disclosed to employees prior to collection.
What are the potential privacy implications of the new law as applied to unions?
- Under the new law, California employers that are required to provide written notice to unions of work-related illnesses and injuries must provide the union with the same information contained in the Cal/OSHA form 300 injury and illness log, including the name of the employee with COVID-19.
- Employers are strongly encouraged to consult with legal counsel regarding the applicability of the Cal/OSHA requirements before providing this information to unions given the privacy concerns associated with disclosing the identity of the infected employee.
When must employers notify a local public health agency?
- Employers are required to report a COVID-19 outbreak, as defined by the Department of Public Health, to the local public health agency where the worksite is located within 48 hours of learning of the outbreak. The employer must provide the names, number, occupation and worksite address of the qualifying individuals.
Although A.B. 685 does not take effect until January 1, 2021, California is in the process of creating an emergency temporary rule with the same regulations. Employers may therefore be required to comply with the new law before 2021.
For additional information on how to comply with the new COVID-19 notice requirements, please contact Rhonda Nelson at firstname.lastname@example.org or Megan Clark at email@example.com. For information on how to comply with the CCPA, please contact Genevieve Walser-Jolly at firstname.lastname@example.org.