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AB 654 Modifies Employee Notice and Reporting Requirements for COVID-19 Exposures in the Workplace
By Ryan A. Quadrel, Attorney, Slovak Baron Empey Murphy & Pinkney LLP

Summary

Recently enacted as urgency legislation, Assembly Bill 654 (Reyes) clarifies two mandatory steps for an employer’s response to a potential COVID-19 exposure in the workplace. First, it clarifies an employer’s obligation to provide: (a) notice to employee representatives of an exposure; (b) notice to employees of available COVID-19-related benefits; and (c) notice to employees of the employer’s plan for cleaning and disinfecting.  Secondly, it clarifies the timing of reporting an outbreak to local health agencies and provides exemptions for certain categories of facilities which are no longer required to report workplace outbreaks.

Background

AB 654 comes on the heels of Assembly Bill 685 (Reyes, 2020), which took effect earlier this year.  AB 654 does not modify an employer’s existing obligation to notify employees of a potential exposure to COVID-19 if they were on the premises at the same worksite of an employee who tested positive.  However, it does clarify the circumstances in which the employer would need to provide notice to employee representatives (e.g., union representatives or attorneys) of the exposure, and notice to employees of available COVID-19-related benefits as well as the employer’s plan for cleaning and disinfecting.

Employee Notice Requirements

Under AB 654, the obligation to provide notice to employee representatives is triggered by an employee’s “close contact” with a person who has tested positive for COVID-19. 

An employer’s obligation to provide employees with notice of available benefits and the employer’s disinfection plan is triggered when an employee is “on the premises at the same ‘worksite’ as the qualifying individual within the infectious period.” 

Updated Definitions

To further clarify these employee notice requirements, AB 654 updates certain definitions applicable to these requirements, as follows:

• “Close contact” is now defined as being within six (6) feet of a COVID-19 case for more than 15 minutes or more in any 24-hour period within or overlapping with the high-risk exposure period, regardless of face coverings.
• “High-risk exposure period” will be considered to mean either:
  • For individuals with COVID-19 symptoms, 2 days before an individual first developed symptoms until 10 days after the symptoms first surfaced, and until the individual has gone 24 hours without a fever, without the use of medication.
  • For individuals who test positive without exhibiting any symptoms, the “high risk exposure period” is from 2 days before until 10 days after the first positive test
• “Worksite” will no longer include locations where the worker is isolated from other workers, or a worker’s personal residence or remote location. “Worksite” means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. In a multiworksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.

Reporting to Local Health Agencies

AB 654 also revises the reporting timeframe for workplace outbreaks, changing the original 48-hour timeframe to 48 hours or one business day, whichever is later.  In certain circumstances (e.g., a holiday weekend) this may provide employers additional time to notify local public health agencies of a COVID-19 outbreak.  An “outbreak,” is still defined as three (3) probable or confirmed cases reported in a workplace within a 14-day period. 

The new bill also expands the categories of employers who are exempt from certain reporting requirements.  Certain licensed facilities are no longer required to report outbreaks to a local health agency.

The complete list of exempt facilities includes certain health clinics and care facilities such as community clinics, intermittent clinics exempt from licensure, tribal clinics exempt from licensure, outpatient settings conducted, maintained, or operated by federally recognized Indian tribes, tribal organizations, or urban Indian organizations, rural health clinics, federally qualified health centers, chronic dialysis clinics, employers that provide health care services and that have employees licensed pursuant to the Business and Professions Code, home health agencies, pediatric day health and respite care facilities, hospices, community care facilities including adult residential facilities for persons with special health care needs, care facilities for persons with chronic life-threatening illnesses, residential care facilities for the elderly, and child day care facilities.

Sunset Provision

These newly modified reporting requirements for employers will terminate on January 1, 2023, along with the original reporting requirements of AB 685.

Key Takeaways

            This new bill should serve as a reminder to employers that they need to notify employees who have been potentially exposed to COVID-19 in the workplace.  Employers also need to be aware of the circumstances in which they would need to notify union representatives of an exposure and provide employees with information related to benefits that may be available to them related to COVID-19.

All employers need to have a written COVID-19 prevention program and disinfection plan in place and staff needs to be trained on these written policies.  Copies of these written policies will need to be provided to employees who worked on the same worksite with someone who was infectious at the time of the exposure.

Employee notice requirements and reporting requirements are distinct.  Employers also need to report workplace outbreaks of COVID-19 to the local health department within 48 hours or one business day unless they are now exempt.

Important Reminders

In addition to local health agencies, employers must report to Cal/OSHA any COVID-19-related serious illness or death of an employee at their place of employment or in connection with their employment.

All positive cases of employees should also be reported to the employer’s worker’s compensation insurance carrier within three (3) business days.

Even though California’s 2021 COVID-19 Supplemental Paid Sick Leave law has now expired, employers are still required to pay an employee’s salary and benefits if they are excluded from the workplace as required by Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS).  An employee who was excluded from work because of a workplace COVID-19 exposure should receive exclusion pay if: (1) the employee was not assigned to telework during that time; and (2) the employee did not receive disability payments or workers’ compensation temporary disability payments during the exclusion period.

Cal/OSHA recently proposed revisions to the ETS which would eliminate the exclusion pay requirement effective January 14, 2022, if these revisions are approved.

Employee notice and reporting requirements are constantly changing and it is recommended that employers review their existing policies and practices with employment counsel to ensure that they remain in compliance.


This article was written by Ryan A. Quadrel, an attorney in the Labor and Employment Department of Slovak Baron Empey Murphy & Pinkney LLP, as part of  CSDA’s New Laws Series, where experts explain recently enacted laws and how they will impact special districts moving forward. This article is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues, and attorneys should perform an independent evaluation of the issues raised in these materials.

Stay tuned to the New Laws Series in CSDA eNews for more in-depth analyses on new laws affecting special districts.

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