EMPLOYER MANDATORY COVID-19 REPORTING
October 26, 2022
On September 29, 2022, Governor Gavin Newsom signed Assembly Bill (AB) 2693 which amends and extends COVID-19 workplace notice requirements until January 1, 2024.
Currently the California Occupational Safety and Health Act of 1973, authorizes the Division of Occupational Safety and Health to prohibit the performance of an operation or process, or entry into a place of employment when a place of employment exposes workers to possible infection with COVID-19, which constitutes an imminent hazard to employees. Notice of the prohibition is required to be posted in a conspicuous location at the place of employment and a violation of the prohibition or the removal of the notice (expect as specified) is a crime.
If an employer or a representative of the employer receives a notice of potential exposure to COVID-19, the employer is required to take specified actions within one business day of the notice of the potential exposure. This notice includes providing written notice to all employees on the premises at the same worksite that they may have been exposed to COVID-19. Additionally, if an employer is notified of the number of cases that meets the definition of a COVID-19 outbreak, the employer is required to notify the local public health agency within 48 hours.
AB 2693 extends employers requirement to notify employees of worksite confirmed cases of COVID-19 within one business day until January 1, 2024 and amends the employer reporting requirement under current law. Going forward, employers will have two options to satisfy their COVID-19 reporting requirement.
Employer Reporting Requirement
Option One: An employer may provide notice to employees of a potential COVID-19 exposure by prominently displaying a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted which includes:
- The dates on which an employee, or subcontracted employee, with a confirmed case of COVID-19 was on the worksite premises within the infectious period;
- The location of the exposures, including the department, floor, building, or other area, but the location need not be so specific as to allow individual workers to be identified;
- Contact information for employees to receive information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as antiretaliation and antidiscrimination protections of the employee; and
- Contact information for employees to receive the cleaning and disinfection plan that the employer is implementing per the guidelines of the federal Centers for Disease Control and Prevention and the COVID-19 prevention program (“CPP”) per the Cal-OSHA COVID-19 Emergency Temporary Standards.
Option Two: Alternatively, employers may provide a written notice to all employees, and subcontracted employees, who were on the premises at the same worksite as the confirmed COVID-19 case within the infectious period that they may have been exposed to COVID-19 in a manner the employer normally uses to communicate employment-related information. Acceptable methods of written communication include, but is not limited to, text, email, and/or personal service. However, this method may only be used if the employer can reasonably anticipate the notice will be received by the employee within one business day. The notice must also be provided in both English and the language understood by the majority of the employees.
Separately, employers are required to provide written notice to the exclusive representative, if any, of confirmed cases of COVID-19 and of employees who had close contact with the confirmed cases of COVID-19 within one business day. This notice is required to contain the same information that would be required in an incident report in a Cal/OSHA form 300 injury and illness log unless the information is inapplicable or unknown by an employer.
COVID-19 Incident Log
In addition to notifying employees of their potential exposure to COVID-19, employers are required to keep a log of all the dates the COVID-19 notice was required by this section at each worksite and must allow the Labor Commissioner to access these records. Employers are required to maintain records of these written notifications for at least three years.
Under AB 2693, employers are prohibited from requiring employees to disclose medical information unless otherwise required by law. And employers are prohibited from retaliating against an employee for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolation.
Lastly, employers will no longer be required to notify local public health agencies of the number of COVID-19 outbreaks at their worksite(s).
Based on recent visits to our clients’ worksites, we anticipate the labor commissioner will be out asking for the incident logs during surprise site inspections. We will continue to keep you updated on new developments. If you have any questions about COVID-19 workplace notices, contact McKague Rosasco LLP.