Episode 92: COVID-19: New Exposure Notice Reqs

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's Executive Vice president and General counsel and with me today on the podcast is Robert Moutrie. Rob is one of Chamber's top notch policy advocates and he specializes in legislation that involves Cal osha. Rob is joining us today to talk about the exciting Assembly Bill 685, which is legislation that requires sweeping new notice and reporting requirements for employers with respect to COVID 19 exposure in the workplace. Welcome, Rob.

Hi. Good to be here. And I appreciate the top notch call out. That was really generous of you.

We always like to highlight our esteemed lobbyists when they come onto the podcast. And this is not one of our lighter topics either because as you and I have been talking virtually of course, about employer compliance with this monstrosity AB 685 since it was signed into law by the governor back in September. And as you know, and I know, you've been receiving calls from members as well, there's a lot of confusion, there's a lot of uncertainty, there's a lot to this bill. So let's just dig right in and start chatting a little bit about what what we have here. And one thing to note because I know that a lot of employers are confused about when this bill takes effect.

Yes, let's hit that first. So apparently there was a mistake in Politico. Somebody published something wrong. But this goes into effect January 1st. There's no urgency on this. I mean there's no urgency clause. There's obvious urgency to get ready in the next few months. But it goes into effect January 1st. And as long as we're on that point, I'll circle back to this later. But we also anticipate, hopefully we're working on cleanup language. So you'll see January 1st and then hopefully within the next couple of months you'll see some changes to follow up there.

Yeah. And we should definitely circle back on that so that folks don't think, oh, I don't have to worry about this right now because there's going to be changes because the changes are pretty specific.

Right.

And there's a lot that employers need to do before January 1st that they're in compliance with this. So let's just, absolutely, let's just hit it. So what is, I'm going to be really broad for you. What does AB 685 do?

It does a lot. So I'm going to focus on the first, the notice and the COVID 19 reporting issues, which are the primary points of discussion. I'm going to upfront flag though that there are also some Cal OSHA related changes to authority related to closing workplaces and notice for Cal OSHA citations. So those are something you want to talk to your counsel on those points. But the bigger issue that you have to really get ready for is the notice related provisions. So turning to the primary point about AB 685, the first thing employers have to know is they're going to have to identify who gets this notice, what they get, and they have to get that notice out to the employees within 24 hours. And this was where the biggest issue for us in working with the author and opposing this bill was, which is the feasibility of the notice. And though it was considerably improved from the earlier drafts, still going to be onerous for employers and we need to start getting ready now. So specifically, employers need to identify and this is a textual error in the bill, but we have to deal with it until the cleanup legislation goes through. I think the employers have to identify three different groups of people for notice. And you should work with counsel on this because making the determination as to who meets these categories is not going to be something that you will be able to do casually. But you have to identify first employees who were at the workspace where the potentially sick, either member of the public or employee was. Then a second category of people mentioned in the bill is those who, quote, may have been exposed. And that's vague language that my understanding from the author's office is it wasn't supposed to still be there at this point, but legislative process in California, it continued through to the end and was signed by the governor. So we have a second category of those who may have been exposed. And then we have a third category of notice required. And this is specifically in Labor Code 6409.6 requires notice to all employees of your cleanup procedures. And again, that was something where having spoken to the author's office, they don't seem to think that was their intent. But at present, an employer has to be aware of those three different definitions and work with counsel to make sure that you're meeting all three of those different requirements. So that's the first question, right, is who you have to give that notice to. We talked about 24 hours, the timeline. The next issue is how do you give that notice? This is an area where the initial drafts were really problematic. They required verbal notice to every employee within 24 hours, hand delivered letters. Thankfully, we were able to make some progress there. So now what the bill requires is you can give notice in ways that you normally communicate with the employees. You know, I think for, for many businesses that may be an email, right, With a number of attachments, a standard email saying on this date there was a potential exposure at this workplace. And then you might attach your leave policies or attach a link to your leave policies. That kind of email will I think we the method for most. But you could also text. If you have any kind of messenger service or whatever your workplace uses regularly, you can use that. Again, talk to counsel to really get into the details there just on this.

Notice as far as how it gets to the employee, it still needs to be in writing, is that correct?

Yes, Erica, there does need to be written notice provided here. You can't use just an oral call. You of course could call them and also send the written notice. But at one point I should also clarify, I think I may not have been clear earlier. 24 hours I was using loosely. The bill actually requires notice within one business day. And this is a critical point that we were able to get from the author stressing the fact that you may get a call Friday afternoon when an employee says, hey, I tested positive or a contract chaser says that you're not going to get that notice out to everybody by Saturday. So employers have one business day which isn't much time, but it's an improvement over initial drafts. So you have a very tight timeline for that notice. Identify those populations. Then you have to look at what about the notice to public health agencies. So public health agencies also get notice here. The bill relies on definitions used by CDPH and federal cdc. So again you're going to want to talk to council to make sure you're interpreting those correctly. And importantly, those definitions may change if the CDC or CDPH updates their definition, for example of what constitutes an infectious period for a sick individual or what constitutes a positive test. You know, the legislation refers those definitions and so you'll need to keep an eye on that or council need to keep an eye on that for you to make sure you're still in compliance. Broadly speaking, at present, you'll need to report if what they call an outbreak takes place in the workplace and that is if you have three cases rather exposures within a two week period. That's the present definition being used that they're referring back to by CDPH's definition. That definition could be adjusted, but if that happens, you have additional reporting requirements and there's a publication issue. So the bill, and this is one of the big sticking points for business that we were not able to get out. You should be aware of the state will be publishing data on outbreaks at different locations. Now it's not clear exactly from the text of the bill what you know, exactly how they will publish that. It's not clear that it will say, for example, the business at this address on this corner has an outbreak. They could aggregate it, they could do it regionally and say, you know, in this city there were this many. It's not clear how they'll do that, but they have the authority to publish it specific to any workplace under the bill. So these outbreaks will the so called outbreaks and the publication issue is something that did get through and businesses should know that if they have an outbreak pursuant to this bill, that information could be published on state websites really concerning, you know, for restaurants, for smaller businesses that are serving customers. Because that information of course will be outdated by the time it's posted. Right. In case it's reported by the time it gets processed, it'll be published two weeks later, three weeks later, four weeks later, the people aren't in the workplace anymore. Right. Will be online. And that's a huge concern for the small and medium sized businesses that we talked to and we just weren't able to get it out.

Yeah, now I know we've seen that in legislation in the past and it's almost like a blacklist of entities, you know, kind of the don't go there because of especially when we have such loose terms from this legislation. Robert, tell me in addition to that written notice that an employer needs to provide to all employees within one business day of receiving that notice of potential Covid.

Do they also have to do anything with regards to safety cleaning, anything of that sort?

Yes. So there is a requirement that they have to provide to the employees the safety plan. And this is one of those areas where the bill relies on preexisting definitions. So the Bill references the CDCs Disinfection and safety plan and that's something that you'll have to provide to all employees. All employees, period. This is that area where with the different types of notice you're providing, your disinfection and safety plan must go to all employees company wide. Again, drafting error. But now I should clarify another issue here. Employers should watch for is some of these definitions are not, are not clearly written in the bill and it's something we're hoping to fix and clean up. But for example, the CDC doesn't have requirements about a disinfection and safety plan. It's not a term they have they have disinfection and cleaning plans. Right. Related to cleaning areas that are exposed. But the safety plan text there appears to just be a mistake. Author's office seems to think it's a mistake. We're hoping to get it fixed. But as it stands, this is another reason you really want to talk to counsel on this because issues like that are going to make this very hard for a small business person on their own to just figure out what they need to do.

When you talked about notifying all employees, is this per work site or is this for a company? Let's say one work site has a potential exposure, but they have work sites throughout the state of California. Are we talking about just the employees at the exposed work site or at all work sites?

Just the disclaimer that I would not want to give legal advice. My read of this in comparison to the other provisions is that this would be all employees because you have certain provisions that refer to work site specific publication and certain provisions that do not mention worksite. And you know, you know, as a lawyer, as I. Right. A traditional tenet of reading legislation for courts is if you mention it in one place and not another, you must mean that.

Right.

So I think this is company wide notice at present.

Okay, moving right along because I know we're running out of time and there's so much to talk about with this plan. And just for our listeners to be aware, we are putting together information and all of our new law material that's going to be in HR California Alert, all of their great publications are continuing to do our best to inform the business community about legislation that only has passed. But of course you'll hear more about these potential fixes as we get closer to the legislative session, which will begin again in a couple months. But since we are in the fall and we have a couple months before this will take effect, what can employers do right now to start preparing?

Yes. So what employers need to do and then if we have time, I want to talk about a couple of exemptions quickly. But I think what employers need to do first and foremost is they need to reach out to counsel and they need to start setting up the mechanisms to receive notice. You know, picking a designated person to receive that notice to say, hey, okay, now I've got this notice and then having a quick pathway set up so once the notice is received, managers or whoever that's set up to be, you can get out these necessary notices within that one business day timeline. Right. Because that timeline is going to require you to have the mechanism set that may be setting up template emails. It may be developing some working norms. For example, since one of the provisions provides everyone at the work site will get noticed getting together email lists, you can quickly say, okay, these people were all here that day. But setting up the mechanisms to go quickly and really speaking to counsel are the two things that I would direct employers to start looking at immediately.

So let's get to those exemptions that you wanted to talk about.

Yes. So these are not as broad as many businesses would have wanted them, but there are exemptions for specifically for reporting to the state Department of Public Health for medical businesses mainly, that already have that kind of obligation. And there's talk with the author's office about expanding that, because the thing is that many types of medical facilities already have reporting requirements related to health hazards in the workplace. The bill does not contain exemptions for all of them, but it's an area we're working on. So particularly if you're in the medical field or if you already have reporting requirements to public health agencies, keep an eye on that for the cleanup legislation. And then there's also exemptions related to medical facilities that are specifically treating individuals with COVID 19 as part of their main work. Right. So not, for example, a chiropractor and a patient happens to have COVID 19, that wouldn't kind of fall under this broader exemption. But if you are a hospital and you're treating a COVID 19 patient, again, speak to council. But the intention of this, one of the exemptions here is to exclude that. So the hospital's not giving notice every single day. Now, once that if a staff member becomes infected, then you fall out of this exemption. So as long as it's only patients who have it, you know, there's an exemption here that medical businesses should be aware of, but once staff members start getting it and it's among staff, then you start falling out of the exemption and you'll have to meet the requirements. So mainly medical employers should make sure to look closely at those provisions.

Okay, that's really good to note. And again, for them to also talk with council about any of these particular issues, because like you said, there's a lot here that employers need to be aware of. And we know that some industries are excluded, some are not, which we have seen quite frequently through the legislation that was signed into law, particularly this year, and as it relates to COVID 19. So, you know, hopefully most of our listeners or many of our listeners are able to tap into some help for legal interpretation and application to weather and what provisions actually apply to their workplace. But the one thing that our listeners have now that a lot of people don't have is the inside knowledge and know that there will be fixes or that there is strong discussion for some fixes. Strong discussion here on the workplace.

Yes. And if we have a moment, I'll briefly flag those areas where we hope that's going to be.

Because I'm just trying to keep you here on this podcast as long as possible, Eric. So there's two areas that there's, I think, more broad agreement we're hopeful on. Again, don't bank on this. Prepare with counsel for the present text. But the areas we're hoping and anticipate cleanup being successful in is first clarifying the populations of who gets notice, the three different populations mentioned for getting notice, the work site, then whoever may have been exposed, then all employees. The hope is to get that to be one definition. And the anticipation is we'll be able to get it to just be employers, excuse me, employees at the same work site. So limiting that down. And then the other place we anticipate cleanup is expanding the exemptions for medical groups who already have similar reporting requirements. That list presently only includes one or two groups. At the end of the session, the author was hoping to add more groups there. And so there's we know there's interest there on all sides. Those are the two areas I would bank on. We're trying to achieve a fair number of other cleanups in language, but I don't want to promise more than we think we can deliver. They'll stay there. Okay.

I think that's great. Hey, whatever it is, there's still some inside knowledge, so I'm going to count it.

Absolutely.

Well, Robert, thank you so much for coming on the workplace again today to talk about this really important bill that I can't emphasize enough is loaded with a lot of requirements for which employers to be aware of. And so hopefully this has given them a little bit of a head start to their January 1st compliance requirements. So thank you so much for joining us.

Have a great one.

And thank you all for joining us on the Workplace. Please keep up to date on important COVID 19 developments for employers and subscribe to Cal Chambers podcast by visiting calchamber. Com.