December 21, 2020, by Kasumi T. Roddick
There have been more questions (and frankly, more confusion) over what employers are supposed to do to be COVID-compliant in the workplace. Specifically, we have been getting questions from clients about what COVID-19 laws apply to workplace safety. With the year’s end in sight, here are the new COVID-19 laws you should be aware of.
COVID-19 Workplace Safety Law (AB 685) – Report and Notify: This bill is known as California’s COVID-19 notice and reporting law. It requires all employers to give written notice within one business day to employees and others of a potential COVID-19 exposure at the worksite. The bill details the information that must be contained in the notice, such as: providing guidance on whether to isolate or quarantine based on the COVID-19 exposure; an instruction on self-monitoring for COVID-19 symptoms as defined by the CDC; delineating the employers’ disinfection and safety procedures; and providing information concerning COVID-19-related leaves and benefits available to exposed employees. In addition to the notice requirement, employers are also required to report cases of COVID-19 in the workplace to local public health agencies within 48 hours when there is an “outbreak,” which is defined as three cases within a two-week period among employees from different households. This COVID-19 workplace safety law will be in effect for two years–until January 1, 2023.
To add a layer of complexity, this law must be complied with and considered together with Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS), which became effective November 30, 2020. The onerous ETS contains some overlapping, but notably different requirements. For example, the ETS: requires employer-provided testing during work hours; enforces job-protection and pay for employees needing COVID-19 leave but remain available for work; outlines specific return-to-work criteria; contains different notification and reporting requirements; and uses different terminology for employers to keep track of. While Cal/OSHA enacted the ETS to respond quickly to the COVID-19 crisis in the workplace, it has drawn criticism from confused employers. As a result, Cal/OSHA met over the weekend to answer questions and will prepare additional guidance on the application of the ETS and its interplay with AB 685 by the end of this month.
But, apparently, the end of the month cannot come fast enough, as Governor Newsom signed Executive Order N-84-20 just last week (on 12/14/20) to bring the ETS in line with evolving public health guidance and to trump any ETS deviations from the state’s Department of Public Health’s (CDPH) COVID-19 guidance or the requirements of local health officers with jurisdiction over workplaces. The same day, the CDPH updated its quarantine guidance to permit asymptomatic close contacts to discontinue quarantine after 10 days of last exposure for the workplace. However, the CDC has still noted that the prior 14-day quarantine period is still best practice.
So, while the state and local governments work with government agencies to streamline the COVID-19 workplace safety laws and regulations, we recommend that you start reviewing your workplace COVID-19 policies now against the requirements set forth in AB 685, together with Cal/OSHA’s ETS and the CDPH’s COVID-19 guidance.
And, while testing employers’ multitasking abilities, don’t forget to have the Center for Disease Control’s (CDC) COVID-19 guidance handy for cross refences. Also, here’s a reminder to update your Cal/OSHA-required workplace Injury and Illness Prevention Plan (IIPP) to refer to or include your now required COVID-19 Prevention Plan (CPP).
Please also note that while the EEOC offered initial guidance on COVID-19 vaccinations and recognized its implications on the workplace last week (on 12/16/20), it still raises many issues concerning employee health information privacy and workplace safety. We still don’t know for sure whether employers can require employees to receive the COVID-19 vaccinations to return to the workplace and under what circumstances at this time. However, the EEOC guidance suggests that employers may be able to. This area is developing and will be clarified in the coming months as the roll out of COVID-19 vaccinations gets under way and gains momentum.
COVID-19 and Workers’ Compensation (SB 1159) – Workplace Presumption: Employers with five or more employees who know or reasonably should know that an employee tests positive for COVID-19 must now inform their workers’ compensation carrier within three business days. The law also creates a rebuttable outbreak presumption when: employers with 100 or less employees at a worksite have four employees test positive for COVID-19 within two weeks; employers with more than 100 employees at a worksite have four (4) percent of the employees test positive for COVID-19 within two weeks; or have a workplace closure directed by public health authorities. Please note that the Workers’ Compensation “outbreak” definition is different from the way it is defined by AB 685 and Cal/OSHA’s ETS. SB 1159 also has its own reporting requirements for workplace COVID-19 infections. This law is already in effect and will be for two years until January 1, 2023.
Stay Current on COVID-19 Developments – We are still far from out of the woods with COVID-19 permeating our communities and workplaces. So, act now by designating an employee to take on the role of workplace COVID-19 coordinator to keep track of state and local developments and how they may impact your workplace or alter the way you need to run your business. And, stay tuned for upcoming Jones Bell newsletter topics on how COVID-19 affects workplace policies and practices.