California Adopts New OSHA Provisions Related to COVID-19 Outbreaks in the Workplace

California Adopts New OSHA Provisions Related to COVID-19 Outbreaks in the Workplace
September 18, 2020 dmock2015

Governor Newsom recently signed Assembly Bill (AB) 685, creating new liabilities and obligations for employers related to COVID-19 outbreaks in the workplace beginning January 1, 2021.

In amending California Labor Code section 6325, this legislation authorizes Cal/OSHA to prohibit entry into a place of employment when, in its opinion, such place of employment exposes workers to the risk of infection with COVID-19, except to the extent it would materially interrupt the performance of critical governmental functions essential to ensuring public health and safety or the delivery of electrical power or water. Upon receipt of such notice from Cal/OSHA, the employer must post it in a conspicuous location at the place of employment.

AB 685 further amends Labor Code section 6409.6 to require an employer, or its representative, to take certain steps in response to receipt of notice of potential exposure to COVID-19. These steps include, among other things, providing written notice of potential exposure to employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the potentially exposed individual within the infectious period (as defined by the State Department of Public Health). The employer must also provide information regarding COVID-19-related benefits to which the affected employee may be entitled under applicable federal, state and local laws and notify all employees, and other specified persons, of the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control. Records of these written notifications must be maintained for 3 years. Employers must also notify the local public health agency of certain information if the employer or its representative is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, within a 48-hour period and continue to give notice of any subsequent laboratory-confirmed cases of COVID-19 at the workplace. This requirement shall not apply to a health facility, as defined in Health and Safety Code section 1250. Also, section 6409.6 does not apply to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals known to have tested positive for COVID-19, are persons under investigation or are in quarantine or isolation related to COVID-19.

Finally, AB 685 amends Labor Code section 6432 to remove the requirement that Cal/OSHA make a reasonable attempt to determine and consider certain factors before issuing a citation alleging that a violation is serious where such violation involves COVID-19. It also removes the employer’s right to present evidence at the hearing if the employer failed to provide information in response to an inquiry from Cal/OSHA regarding a COVID-19 violation alleged to be serious or to provide information inconsistent with that previously provided to Cal/OSHA in response to an inquiry of this type.

These provisions are automatically repealed on January 1, 2023.