It is an unfortunate outcome of this pandemic that in the OSHA world, guidance lags behind enforcement. While state and federal agencies try to make up their minds on the best way of managing COVID-19 threats in the workplace, many employers who have to remain open are receiving citations and penalties for, essentially, making educated but incorrect guesses on what to do. Even the CDC guidance has flip-flopped so often, employers are forced to write preventative plans and procedures in pencil so that they can be easily erased and re-written to conform on a moment’s notice. Take, for example, the decision of whether to report an employee’s hospitalization or death due to COVID-19 to OSHA:

Federal OSHA

Under 29 C.F.R. § 1904.39, all employers – including low-risk employers that are partially exempt from certain OSHA recordkeeping requirements – must contact OSHA to report some serious work-related injuries and illnesses, such as fatalities and in-patient hospitalizations. These reporting requirements, which are dependent on employer knowledge, are also tied to specific timing considerations and constraints. 29 C.F.R. § 1904.39 (b)(6) in particular conveys that employers have 8 hours to report a work-related fatality that occurs within 30 days of the work-related incident (i.e., event or exposure) precipitating it.  Employers likewise have 24 hours to report an in-patient hospitalization if the hospitalization occurs within 24 hours of the work-related incident that caused it.

Most infectious diseases are not recordable or reportable under OSHA regulations for many reasons. First and foremost, because of the prevalence of common infectious diseases in the general population, it is impossible to determine whether an infection is work-related or not. Second, rulemaking initiatives surrounding the regulations noted explicitly that there should be a carve out for the common cold, flu, and similar illnesses because these illnesses were public health matters rather than occupational exposure issues, and as such were not work-related. OSHA has further generally excluded illnesses from the recordkeeping requirements that can develop regardless of workplace exposure. However, OSHA decided on April 13 that COVID-19 illness would be treated as a recordable or reportable illness in some cases.

COVID-19 is a highly infectious disease that is easily spread through aerosolized respiratory droplets (e.g., sneezes, coughs, etc.) while individuals are in close contact (i.e., less than 6 ft. distance). To make matters more complicated, COVID-19 can also be spread by asymptomatic individuals. As COVID-19 community spread has increased, employers have had to grapple with determining work-relatedness with limited and, in some cases, changing guidance from authorities. As discussed in some of our earlier blog posts, early on in the pandemic OSHA initially advised that only those employers with occupational exposures to COVID-19 (e.g., healthcare facilities) were required to assess COVID-19 cases for work-relatedness. But the agency changed course on this position in May, stating that all employers needed to assess COVID-19 cases for work-relatedness. Then in mid-July, OSHA quietly updated its COVID-19 FAQs to add guidance that took an extremely broad (and probably unenforceable) interpretation of an employer’s responsibility to report COVID-19 hospitalizations and fatalities.  That approach, which was deleted from the site just a couple of weeks later, required employers to report COVID-19 hospitalizations and deaths regardless of work-relatedness or timeline between the potential workplace exposure (i.e., last day worked) and reportable event. Such an approach would have required reporting on COVID-19 cases that did not occur during the regulatory limitations period for reporting – a complete departure from the regulation.

On October 1, 2020, OSHA updated the FAQs again – this time taking a more reasonable approach.  In these latest FAQs, OSHA defines a “work-related incident” as “an exposure to SARS-CoV-2 in the workplace.” This is a significant and welcomed departure from OSHA’s previous position, which eliminated the work-relatedness determination altogether.  OSHA’s FAQs are merely guidance, and not even formal guidance. OSHA does not review and approve FAQs posted on its website with the same rigor as a memo, interpretation letter, or other document – and of course, OSHA’s decision not to engage in rulemaking on COVID-19 means that none of its COVID-19guidance has been subject to notice and comment or other rulemaking requirements under the Administrative Procedures Act. However, the absence of a formal rule means that the agency’s COVID-19 guidance memorandums and FAQs are employers’ best resource  to understand how federal OSHA views these issues and the position OSHA will take on them in an enforcement action. However, employers cannot stop there – because various states have their own reporting requirements that sometimes diverge widely from the federal agency.

State Considerations

There are 28 OSHA-approved State Plans that operate statewide occupational safety and health programs. Of these State Plan states, several states, including specifically California, New Mexico, and Virginia have taken varying positions on COVID-19 case management, resulting in distinct reporting requirements. A table comparing these states’COVID-19 case reporting requirements is provided below:

Federal OSHA California Reporting Distinctions New Mexico Reporting Distinctions Virginia Reporting Distinctions
 “Reportable” COVID-19 Case Requirements Confirmed COVID-19 positive case through testing that is determined to be work-related and results in satisfaction of reporting criteria.
  • COVID-19 case does not have to be confirmed through testing.
  • COVID-19 case must be reported if it meets the definition of a “serious injury or illness” irrespective of when a potential exposure may have occurred.
  • COVID-19 case may need to be reported even if work-relatedness determination is uncertain.
  • Confirmed COVID-19 employee case through testing.
  • Does not require work-relatedness or satisfaction of reporting criteria.
  • Report must be made within 4 hours of the employer’s knowledge that the employee is confirmed COVID-19 positive.
  • Confirmed COVID-19 positive case through testing that is determined to be work-related and results in satisfaction of reporting criteria.
  • Cluster or outbreak of cases, considered to be 3 or more employees present at the workplace within a 14-day period who have tested positive for COVID-19.

 

In addition to these reporting requirements, employers must also juggle reporting obligations to state and local health departments, notification requirements to employees and other third parties, and coordination with federal and state government agencies on COVID-19 concerns. In application, this means that for any given COVID-19 case, an employer may have a reporting obligation to (i) federal OSHA, or the state equivalent, (ii) state or local public health department, and corresponding notification obligations to (iii) employees and (iv) applicable third parties – all within strict timelines. Constantly evolving and, at times, inconsistent guidance from federal OSHA, government agencies, and state agencies ultimately leaves employers with significant uncertainty and confusion, as well as less opportunities to be successful in hitting their compliance targets.

To avoid regulatory liability and minimize risks of enforcement, employers need to be diligent in managing COVID-19 cases, even if they are likely from community exposures, and maintain effective records. Having a written plan for management of a COVID-19 case ahead of time, which is regularly updated, to account for changes in reporting and notification requirements can also help ensure reporting is done consistently, in a timely manner, and in accordance with the various reporting requirements.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

The Department of Homeland Security (DHS) is making it a little easier for some foreign nationals to fly to the United States by lifting certain restrictions in place following the outbreak of the COVID-19 pandemic.

Under the restrictions, any airplanes carrying passengers who had recently travelled to or had been present in China, Iran, the 26 countries in the Schengen Area, the United Kingdom, Ireland, and Brazil but were exempt or received waivers to enter the U.S. were required to land at a limited number of U.S. airports. At those designated airports, there were public health resources for conducting enhanced entry screening. The 15 international airports were in:

  1. Atlanta
  2. Boston
  3. Chicago
  4. Dallas-Fort Worth
  5. Detroit
  6. Fort Lauderdale-Hollywood
  7. Honolulu
  8. Houston
  9. Los Angeles
  10. Miami
  11. New York City
  12. Newark
  13. San Francisco
  14. Seattle-Tacoma
  15. Washington-Dulles

Now, those restrictions have been lifted. This change should make it easier for covered travelers, as they will have more flights, more airlines, and more U.S. arrival destinations to choose from for international travel.

According to its announcement, DHS hopes to stimulate air travel while using its health resources more effectively. Due to COVID-19, TSA hit a low point in daily travelers in mid-April – 87,534. On September 20, 2020, TSA reported 847,968 – a 10-fold increase. But, about three times as many passengers were screened on the same date in 2019 – 2,517,826.

Despite the changes, DHS will continue using an illness reporting system and passenger education for all arriving passengers, along with other TSA health measures. So that passengers and TSA employees “Stay Healthy and Stay Secure” during the screening process, the Agency has instituted, among other things:

  • Social distancing
  • A mask requirement
  • Plastic shielding
  • Increased cleaning
  • To make screening more “contactless”:
    • Each traveler holds their own IDs and boarding passes and places them on the reader, rather than handing the documents to the screener
    • Screeners will use new gloves for each pat down and new explosive trace swabs for each passenger
    • Belts and other items, including change and paper currency, that must be removed from pockets will be placed in the traveler’s own carry-ons, not in bins
  • Each traveler will be allowed to have up to 12 ounces of hand sanitizer in their carry-ons
  • To accommodate identification problems caused by COVID-19 closings:
    • Driver’s licenses or state-issued IDs that expired on or after March 1, 2020, and could not be renewed can be used as identification for up to one year after expiration
    • REAL ID enforcement deadline originally scheduled for October 1, 2020, has been changed and pushed out until October 1, 2021

Even though international travel is down, TSA still recommends arriving early for flights because COVID-19 has affected staffing throughout the airport environment.

If you have questions about international travel and visa restrictions, Jackson Lewis attorneys are available to assist you.

Has the COVID-19 pandemic prompted a rise in class action employment lawsuits? Not yet, according to the numbers. For now, COVID employment litigation has been comprised mostly of single-plaintiff claims. Whether the dam will hold, however, remains to be seen.

The Jackson Lewis COVID-19 Employment Lit-Watch tracks labor and employment litigation developments nationwide, as sifted from thousands of court filings daily, resulting from the COVID-19 pandemic. The tool allows users to track the trajectory, over time, of both class action and individual COVID-related filings by category, by industry, and by individual state.

A powerful tool. Users can compare federal and state filings, drill down by class actions or individual claims, view the number of complaints filed per week, or the cumulative count of all complaints to see how they have changed (or held steady) over time. Users can highlight an individual state to review a list of every complaint filed, organized by category, view more detailed information about an individual complaint, and compare the ratio of COVID incidences in a given locale to COVID litigation.

What the data shows. According to the latest Lit-Watch data (updated most recently on September 28):

  • There have been 727 employment-related complaints filed in state and federal courts alleging COVID-19 related claims.
  • Of the complaints filed, 45 have been asserted as proposed class or collective actions, just six percent of complaint filings.
  • Two-thirds of COVID-related employment claims have been filed in state courts.
  • There was a sharp spike of case filings at the end of August; however, new suits have leveled off in recent weeks.
  • By a significant margin, the healthcare industry has faced the largest number of overall complaints.
  • As for potential class actions, there is no clear leader, but suits against employers in the hospitality/restaurant and retail industries were more likely than other industries to be defending class actions.
  • Disability, leave, and accommodation claims comprise the greatest number of individual COVID-19-complaints.
  • Wage and hour claims constitute the bulk of class claims (consistent with employment class litigation generally), with workplace safety claims second.
  • It will be no surprise that the majority of cases are brought in California. However, a clear majority of class action COVID cases have been filed in Florida.

Click here to access the COVID-19 Employment Lit-Watch.

Jackson Lewis: Your COVID-19 compliance resource. Jackson Lewis will continue to track COVID-19 litigation trends as we navigate the pandemic and its impact on employers. The pandemic continues to alter the reality of how we live and work. What will never change is our commitment to provide you with the practical guidance you need to minimize legal risk while simultaneously reimagining your workplace.

On September 29, 2020, Governor Newsom signed Assembly Bill 2537, which significantly expands upon employers’ existing baseline obligations for providing a safe and healthful work environment.  The new bill creates specific requirements regarding general acute care hospitals’ distribution and supply of personal protective equipment (PPE).  Its purpose is to protect healthcare workers from COVID-19.

Before the passage of this legislation, California broadly required that employers provide safe and healthful places of employment and to maintain effective injury prevention programs.  The new statute, applies to both public and private employers, operating general acute care hospitals as defined in California Health and Safety Code Section 1250(a).   Under the statute, general acute care hospitals are required to provide PPE to their employees who provide direct patient care or provide services directly supporting personal care.

The bill also requires those employers to maintain specific stockpiles of specified respirators, particulate filters or cartridges, surgical masks, isolation gowns, eye protection, and shoe coverings. Specifically, beginning April 1, 2021, those employers must maintain a 3-month supply of the specified equipment.  Further, the bill requires employers to establish and implement effective written procedures for periodically determining the quantity and types of equipment used in its normal consumption.

In addition, general acute care hospitals must be prepared to report their highest 7-day consecutive daily average consumption of PPE during the 2019 calendar year to the Department of Industrial Relations.  Employers violating the PPE supply requirement may incur a civil penalty of up to $25,000 for each violation.  However, hospitals may not incur the penalty if the failure to meet the requirements is due to issues beyond their control.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 28, 2020, Governor Newsom signed Assembly Bill 2043 (“AB 2043”) which tasks the Division of Occupational Safety and Health within the Department of Industrial Relations (“Cal/OSHA”) with conducting a statewide outreach campaign to apprise Agricultural employees of best practices for coronavirus (“COVID-19”) infection prevention and their right to receive COVID-19-related employment benefits, including access to paid sick leave and workers’ compensation.

Anticipated Guidance for Agricultural Employees

Under the emergency bill, Cal/OSHA will disseminate information, in both English and Spanish, on COVID-19 infection prevention available on the agency’s website and in current Guidance Documents, including:

  • Cal/OSHA Interim Guidelines on Protecting Workers from COVID-19,
  • Cal/OSHA Safety and Health Guidance: COVID-19 Infection Prevention for Agricultural Employers and Employees,
  • COVID-19 Industry Guidance: Food Packing and Processing, issued by the division, the State Department of Public Health, and the Department of Food and Agriculture, and
  • COVID-19 Industry Guidance: Agriculture and Livestock, issued by the division, the State Department of Public Health, and the Department of Food and Agriculture.

The bill also requires Cal/OSHA to initiate a statewide campaign to agricultural workers on best practices related to COVID-19 infection prevention and safety measures, including where to report workplace safety complaints.

As part of the campaign, Cal/OSHA, in partnership with community organizations and employee representatives, will make public service announcements on local Spanish radio stations and distribute workplace signs for employers to post in both English and Spanish.

Access to Statistical Data for Cal/OSHA Investigations

Finally, this legislation requires Cal/OSHA to compile and report information on Cal/OSHA investigations related to COVID-19 infection prevention in agricultural settings, including statistical information and investigation details such as the subject matter, findings, and results, on the agency’s website. The specific information required in the report includes the number of investigations in each county and, for each investigation a descriptive summary, discussion on how the investigation was conducted, and investigation result.

Impact on Agricultural Employers

Agricultural employers are encouraged to comply with all Cal/OSHA-issued COVID-19-related guidance, keep themselves informed of the statistical data related to COVID-19 on Cal/OSHA’s website, and ensure their and their employee’s understanding of the COVID-19 Guidance Documents.

Jackson Lewis will continue tracking state legislation that is relevant to employers.  If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

The Sacramento County Board of Supervisors has passed the Sacramento County Worker Protection, Health and Safety Act of 2020, which is effective October 1, 2020.

The ordinance, which applies only to businesses located in the unincorporated areas of Sacramento County, requires employers to implement specified social distancing, mitigation, and cleaning protocols and practices in the workplace. The required protocols include: maintaining and implementing specified cleaning and disinfection protocols; establishing protocols for action if a worksite is exposed to a person with a probable or confirmed case of COVID-19; providing employees with regular access to handwashing, hand sanitizer, and disinfectant supplies; providing face-coverings for employees; and establishing physical distancing protocols for the workplace, including the use of face coverings.

The ordinance also creates a supplemental paid sick leave requirement. The sick leave requirement applies only to those employers located within the unincorporated areas of the County that have 500 or more employees nationally. The ordinance requires that employers provide full-time employees working in the unincorporated areas of the County with 80 hours of paid sick leave; part-time employees receive paid time off equal to their average number of hours worked over a two-week period. Employees may use sick leave for the following reasons:

  • The employee is subject to quarantine or isolation under a federal, state, or local order, or is caring for a family member who is quarantined or isolated, due to COVID-19;
  • The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for a family member who is so advised;
  • The employee chooses to take off work because the employee is over the age of 65 or is vulnerable due to a compromised immune system;
  • The employee is off work because the employer’s work location temporarily ceased operations due to a public health order or other public health official’s recommendation;
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or,
  • The employee is caring for a minor child because the child’s school or daycare is closed due to COVID-19.

The ordinance contains other requirements, which employers should ensure they are following.

The ordinance will remain in effect until December 31, 2020.

Jackson Lewis continues to track federal, state, and local ordinances pertaining to COVID-19. If you have questions about this or other ordinances pertaining to your employees, contact a Jackson Lewis attorney to discuss.

The Department of Homeland Security (DHS) may resume implementation of the new Public Charge Rule, the U.S. Court of Appeals for the Second Circuit has ruled.

The factors that are considered under the new Public Charge Rule include the applicant’s use of public benefits, employment status and history of employment in the U.S., among others.

Since 2018, the Administration has been trying to enforce a new Public Charge Rule that expands the public benefits that would render an alien a “public charge,” thereby limiting the ability of certain immigrants and non-immigrants to obtain visas. When the 447-page Public Charge Rule was published, it immediately became controversial as a “wealth test.” Cities, states, and advocacy groups also opposed the new rule because it would result in immigrants forgoing benefits such as basic health benefits for themselves and even for their U.S. citizen children due to fear of potential adverse immigration consequences.

States and advocacy groups filed suits and injunctions preventing the U.S. Citizenship and Immigration Service (USCIS) from proceeding with implementation were issued. The U.S. Supreme Court lifted one injunction in January 2020 and the new rule was set to become effective on February 24, 2020. However, due to the national emergency caused by the COVID-19 pandemic, a new injunction was issued by the U.S. District Court for the Southern District of New York on July 29, 2020. That injunction was completely overturned by the Second Circuit on September 11, 2020.

USCIS announced on September 22, 2020, that it would apply the new rule to all relevant applications or petitions postmarked or submitted electronically on or after February 24, 2020, including pending applications and petitions. It would do the following:

  • Applicants who filed Form I-485 Applications to Register Permanent Residence or Adjust Status after February 24, 2020 (but before the announcement) may receive Requests for Evidence requiring them to submit a Form I-944, Declaration of Self-Sufficiency, in accordance with the new rule.
  • Any applicants who submit Forms I-485 between September 22 and October 13, 2020, that do not include the evidence and forms required under the new rule will be asked to submit the missing forms and evidence.
  • After October 13, 2020, Forms I-485 that do not include the evidence and forms required under the new rule will be rejected.
  • The Form I-944 (which had been temporarily removed from the USCIS website) has been republished.
  • USCIS also announced that it would ask for any missing evidence for the following forms:
    • I-129, Petition for Nonimmigrant Workers;
    • I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Workers;
    • I-539, Application to Extend/Change Nonimmigrant Status; and
    • I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.

USCIS announced it will not re-adjudicate any applications or petitions that were already approved following the July 29, 2020, injunction.

The Department of State (DOS) issued its last guidance regarding the application of the new rule in August 2020. At that time, DOS stated that the Form DS-5540, Public Charge Questionnaire, was not required due to the then-current injunction. DOS likely will provide an update.

Please reach out to your Jackson Lewis attorney with any questions about the new Public Charge Rule. We will continue to provide updates as they become available.

The City of San Diego enacted emergency ordinances requiring fair employment practices in response to job and economic insecurity due to the COVID-19 pandemic and stay-at-home directives.  The City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance (“Recall Ordinance”) and the City of San Diego COVID-19 Worker Retention Ordinance (“Retention Ordinance”) went into effect immediately upon their passage on September 8, 2020. The Ordinances apply to three categories of businesses and employers that the City found have been especially impacted by the COVID-19 pandemic:

  1. Commercial Property Employer: defined by ordinance as an owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee, of a non-residential property located within the geographical boundaries of the City of San Diego that employers 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a Commercial Property business or employer are covered by the Ordinance.
  2. Event Center Employer: defined by ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.
  3. Hotel Employer: defined by ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

The Recall Ordinance requires a covered employer to offer positions that become available on or after September 8, 2020, to qualified employees who were laid off on or after March 4, 2020. A laid-off employee is deemed qualified and must be offered a position – in the order of priority below – if the employee:

  1. Held the same or similar position at the same location when the employee was laid off; or
  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service in the position and then to the laid-off employee with the greatest length of service with the employer at the employment site.

Under the Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, covered employees are given preference in hiring by the successor business employer for a period of 6 months and must be retained for no less than 90 days, provided the successor employer continues operating for 90 days unless there is cause for termination (which the Ordinance does not define). Once the 90 days have elapsed, the successor employer must perform a written performance evaluation for each eligible employee retained pursuant to the Retention Ordinance.

The Ordinances will remain in effect for six months. However, they could be repealed by January 1, 2021, depending on whether Gov. Gavin Newsom signs pending Assembly Bill 3216 into law, which would provide similar worker protections statewide.

Jackson Lewis’ Coronavirus Task Force will continue to monitor these ordinances and other emergency regulations pertaining to COVID-19. If you have questions or need assistance, please contact the authors or your favorite Jackson Lewis attorney.

Governor Newsom signed Senate Bill 1159 (“SB 1159”) on September 17, 2020, which could expand the definition of injury under the workers’ compensation system to include illness or death resulting from COVID-19. In May, the governor had issued an executive order which created a presumption that any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of employment to award workers’ compensation benefits if certain conditions were met. However, this Executive order expired in July.

Similar to the prior Executive Order, SB 1159 creates a disputable presumption that COVID-19 injuries arose out of and in the course of employment and are compensable. The bill also makes a claim relating to a COVID-19 illness presumptively compensable, as described above, after 30 days or 45 days, rather than 90 days.

The bill also allows for the presumption of injury for employees whose coworkers test positive for COVID-19. This presumption will remain in effect until January 1, 2023.

As this bill includes an urgency clause, it goes into effect immediately.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685, which requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to coronavirus (“COVID-19”).  AB 685 also authorizes the Division of Occupational Safety and Health (“Cal OSHA”) to prohibit operations, processes, and prevent entry into workplaces that it has determined present a risk of infection to COVID-19 so severe as to constitute an imminent hazard. AB 685 also authorizes Cal OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with precitation requirements.

Notification Requirements

Current California law requires employers to report certain occupational injuries and illnesses to Cal OSHA within a prescribed period. AB 685 confirms employers must report COVID-19 cases to the agency that satisfy Cal OSHA’s definition of a serious injury or illness. To satisfy this requirement, employers must have a process for employees to report potential exposures to COVID-19, having tested positive for COVID-19, or having symptoms of COVID-19. Employers must also assess any employee COVID-19 case to determine whether reporting on the case is required under Cal OSHA regulations.

Along with notifying Cal OSHA of a COVID-19 case that meets the definition of a serious occupational injury or illness, AB 685 requires employers having notice of a potential COVID-19 exposure (e.g., individual testing positive for COVID-19 was in the workplace) provide a written notice to:

  • employees and subcontractor employees who were at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result; and,
  • employees’ exclusive representative, if applicable.

This notice must be provided within one business day of the employer being notified of a potential exposure and may be done in “a manner that the employer normally uses to communicate employment-related information,” such as personal service, mail, or text message. The notice should be drafted to protect employee privacy and without disclosure of personally identifiable information or personal health information. The notice should also include information on COVID-19 benefits the employee may be entitled to and the disinfection and safety plan the employer has implemented or plans to implement in accordance with guidance from the Centers for Disease Control and Prevention (“CDC”).

An employer may also need to notify its local public health department of COVID-19 cases if the number of cases the employer knows about meets the definition of a COVID-19 outbreak as currently defined by the California State Department of Public Health. Upon an outbreak, the employer must notify its local public health department within 48 hours and be prepared to provide information on the number of COVID-19 cases at the worksite, their names, occupation, and other pertinent information. Employers will then need to keep working with the local health department and provide updates on new laboratory-confirmed COVID-19 cases.

Notifications required under AB 685 do not alter or change the work-relatedness determination for COVID-19 cases under Cal OSHA regulations. AB 685 further requires that employers maintain records of written notifications for at least three years.

Enforcement Procedures

AB 685 authorizes Cal OSHA to act when, “in its opinion,” employees are exposed to COVID-19 in such a manner as to constitute an imminent hazard by:

  • Prohibiting entry or access to a worksite;
  • Prohibiting performance of an operation or process at the worksite; or
  • Requiring posting of an imminent hazard notice at the worksite.

In treating an employer’s worksite as having an imminent hazard to COVID-19, Cal OSHA must limit its restrictions on the employer’s worksite to the immediate area where the hazard was identified. In addition, Cal OSHA’s restrictions must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” These provisions will sunset on January 1, 2023.

Cal OSHA regulations require a strict process for “serious violations,” in which Cal OSHA creates a rebuttable presumption of a serious violation following an inspection, which is then shared with the employer and the employer is given a chance to rebut. The employer’s rebuttal may then be used in defense of the violation in an appeal or hearing on the matter. Generally, this procedure is satisfied by Cal OSHA sending a standardized form containing descriptions of the alleged serious violation and soliciting information in rebuttal of the presumption to the employer at least 15 days before issuing the citation. For COVID-19 hazards and violations only, AB 685 streamlines this process by allowing Cal OSHA to issue a citation alleging a serious violation without requiring the agency to solicit information rebutting the presumption of a serious violation.  Accordingly, Cal OSHA would not need to notify an employer 15 days before issuing a serious violation related to COVID-19. This exemption will be repealed on January 1, 2023.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.