January 12, 2021
Authored by: Daria Carlson
New reporting requirements for COVID-19 exposures at work became effective on January 1, 2021. The new requirements impose obligations for employers to notify employees (and employers of subcontracted employees) of COVID-19 exposures and to notify public health officials of outbreaks in the workplace. The new law also expands the authority of Cal/OSHA to close down a workplace, or portion of a workplace, if Cal/OSHA determines that it is unsafe due to COVID-19. We have summarized below the details of the new requirements.
Closures, Prohibitions on Use, and Posting at the Workplace. When a place of employment, operation, or process, or any part thereof, exposes workers to the risk of infection from COVID-19 which creates an imminent hazard, Cal/OSHA may prohibit entry or prohibit the operation or process.
- The prohibition must be limited to the immediate area where the hazard exists.
- The employer must post the notice provided by Cal/OSHA in a conspicuous location in the workplace, and the notice may only be removed by Cal/OSHA after a determination that the place of employment, operation, or process is safe.
Notice to Employees. If an employer receives notice of a potential exposure to an individual who was infected with COVID-19 or was subject to an order to isolate, the employer must take all of the following actions within one business day of notice:
- The employer must provide written notice to all employees and contractors who were at the same worksite as the individual during the infectious period that they may have been exposed to COVID-19. “Worksite” includes the building, store, facility, agricultural field, or other location where the individual worked during the infectious period. “Worksite” does not include buildings, floors, or other locations of the employer that the individual did not enter.
- The notice must be given in the same manner that the employer usually communicates with employees regarding employment-related information (such as personal service, email or text) as long as the employer expects that the employees will receive the notice within one business day. The notice must be in English as well as any other language that the majority of the employees understand.
- The employer must provide all employees who may have been exposed with information regarding any COVID-19 benefits to which they may be entitled under federal, state and local laws, such as workers’ compensation or any leaves of absence, and must advise employees of their anti-retaliation and anti-discrimination protections.
- The employer must notify all employees of the disinfection and safety plan the employer intends to implement pursuant to CDC guidelines.
Notice to Public Health Agencies of Outbreak. If the employer is notified of three of more laboratory-confirmed cases of COVID-19 among employees who live within different households within a two-week period, the employer must notify its local public health agency within 48 hours of the name, phone number, occupation and worksite of the employees who have COVID-19. The employer must also report the business address and NAICS code of the worksite, and must include all other information required in a Cal/OSHA Form 300 incident report. The employer must continue to give notice of any subsequent laboratory-confirmed cases of COVID-19 at the worksite to the local health department.
Exceptions. There are exceptions to the notice provisions for various health care facilities and health care workers.
Citations and Penalties. Cal/OSHA may issue a citation and a notice of monetary penalty for violations of these provisions. Cal/OSHA may issue a citation for a “serious” violation (one which could cause death or serious physical harm) without giving employers the typical 15-day notice, although the employer has the right to appeal.
Privacy Rights and Anti-Retaliation. An employer may not require employees to disclose medical information unless otherwise required by law. An employer may not retaliate against an employee for disclosing a positive COVID-19 test or diagnosis, or an order to quarantine or isolate. Workers who believe they have been retaliated against may file a complaint with the DLSE.
Maintenance of Records. An employer must maintain records of the written notifications for three years.
BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19/Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html.