Episode 95: New Guidance on COVID-19 Notices Law

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 back on the podcast today is Robert Moutrie, who is one of Cal Chambers Policy advocates who specializes in Cal osha. And Robert joined us recently to talk about Assembly Bill 685 which has to do with COVID 19 employer reporting requirements and and Rob is back with us today to give us an update on some new guidance material regarding AB 685. Robert, welcome.

Hi Erica, great to be back on this quickly moving topic.

That is true. And why is it so quickly moving? What's happened in the last couple days?

Yes. So since we last recorded, CDPH has released some new guidance documents related to AB685 and compliance specifically that's on October 16, 2020. So they released these documents. You can find them on CDPH's website. And one of them includes a list is the definitions includes a list of definitions dealing with some of the terms that were problematic for employers because they were vague in the final text. Some of these I highlighted when we previously spoke. But one example is it clearly defines what is considered an outbreak, which the prior text had a reference to cdph, but CDPH didn't have a clear document defining that. Another helpful change to the definitions is that it finally clears up the ambiguity as to what constitutes a lab confirmed test under the bill. There'd been some questions from Senator Pan as well as the business community to say a lab confirmed test could be an antibody test which might indicate prior infection but not present infection, or it could be a live virus test. And we wanted that to be distinguished in the bill to be clear that the trigger came from a live infection. So this definition page for CDPH clarifies that a lab confirmed test under the bill must be what we would call a live virus test. That's another good change. However, it did not address all of our definitional concerns. Notably, we had spoken about the difference in the bill's three groups who receive notice and they must receive different kinds of notice. And that's one of the big remaining business community concerns in terms of clear compliance. That was not addressed in the definitions page or the second guidance document, which I'll flip to now. The second guidance document is more broad and it refers it's titled employer questions about AB685, California's new COVID 19 law, and it discusses more of a background for employers. What is AB 685? What information do I have to give workers? It summarizes the provisions of the bill. I would not use this superseding the bill. I would still advise you to talk to counsel and.

Look to the text of the bill for what must be done because this guidance doesn't really clarify, for example, those different populations receiving notice. One important part that I do want to highlight for everyone though in this second guidance document is that it emphasizes that the reporting requirements of AB 685, that is the requirement that when three or more cases occur in the workplace within a two week period, those should be being reported to public health, local public health agencies. Right now this is a big question because many of us have looked around and said when does AB685 go into effect? But notably, this individual provision is identified in the guidance document as already being required at a regulatory level independent of the statute. Now I've gotten some questions. Is this enforceable? Is this not enforceable? The short answer is yes. These guidance documents issued by Cal, OSHA and CDPH jointly are enforceable. So businesses need to move towards that reporting and setting up that reporting as quickly as they can. One other piece that is important to highlight between these two documents is that the definition of what constituted an outbreak was tweaked. And that is to say that there had been some ambiguity about workplaces that were customer facing and whether an outbreak counted as exposures from customers. Three different customers come through the same grocery store. Let's say in a two week period, they all separately test positive. The grocery store gets three calls from contract tracers saying there was potential exposure at your workplace. Does that count as an outbreak? That had been an ambiguity in the text of the bill. These guidance documents clarify the outbreak must be among employees. Again, a positive change and one that we had pushed for. So it's good to see some common sense coming forward on that front. So employers should definitely take a look at both of these documents and urgently get into the position of setting up reporting to local public health if they haven't been already doing so.

Thank you Robert. And just so we could take a step back so folks aren't too terribly confused, which it's so easy to happen these days with so many things changing by the minute. The CDPH is the California Department of Public Health and this is the agency that has been really at the forefront of a lot of the COVID 19 guidance that's been issued by the State of California and the Governor's office. And as we know and previously mentioned on the podcast, part of the requirements that employers must follow is if there is a COVID 19 positive test or an employee who lets you know that they've been diagnosed with or tested positive to notify the local health department. So that is something that shouldn't be too terribly new to all of you if it is now, you know, recognizing, however, that a lot of the local health departments are extremely busy and we've heard from some of our members that sometimes there's nobody who answers the phone at the local health department. So documenting the effort that you've taken is always going to be at least the minimum thing you should do to demonstrate that you have been following. But with regards to AB 685, we don't want to lose sight that this bill does not take effect until January 1st. However, that will be here very quickly. And for many of the employers that listen, you might have a fairly large workforce, which then requires additional planning to make sure that you have somebody in place or you have a department in place that is going to be able to follow all of the compliance mandates that are being sprung upon you, either already through some of the urgency measures that the governor signed and took effect immediately, or those measures such as 685 that take effect in January. And one of the things that we wanted to alert all of you is many of you are still trying to figure out AB685, which is absolutely understandable. And that the California Department of Public Health's website, or landing page, if you will, actually does a fairly good job piecing all of the information together and has a, I would say, and correct me if you might disagree, Robert, but a really nice FAQ, typed, laid out page that is easy to understand.

Yeah, I think that their website has come a long way and I think it's absolutely workable on that front. And the page I spend most of my time at is CDPH's guidance documents page specifically. And what's nice there is that you can see the guidance documents listed by industry and you can see the date they were updated. So you can see quickly, oh wait, this was changed last week. We've been following it. But let's go see what the changes were and what they've been doing, which is very helpful is for some that have been updated, they've been including at the top what has changed in the document. So that's been helpful as well. And actually, Erica, you brought me to another point that I erred in mentioning in prepping to comply. Employers should also take a look at the governor's playbook in just drafting their notifications for AB 685. The governor's playbook includes some example language for what a notice might say. And obviously you know, the notice has to thread a certain needle because you can't identify the employee who was sick. Right. There's HIPAA and concerns there. So if you're looking to draft those notices, Governor's Playbook may provide some helpful template language that may save a step, especially for smaller businesses who maybe don't have the Council on hand Resources Fantastic.

Well, thank you Robert, for coming back on the podcast to give the listeners this new and informative update. We are all doing our best to stay in compliance and keep up with the ever evolving guidelines that are being issued as it relates to COVID 19 and managing COVID 19 in the workplace. Managing so that it doesn't spread in the workplace is of course, our big goal here. So again, thank you so much for joining us today. We really appreciate it. We hope to have you back on the podcast again sometime soon.

My pleasure. Thank you.

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