10 October 2022
Littler Mendelson
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California Assembly Bill (AB) 2693, signed into law on
September 29, 2022, made changes to COVID-19 notification
requirements by amending California Labor Code section 6409.6
(Duties of employer when notified of potential exposure to
COVID-19) and extending its provisions until January 1, 2024. The
main modification gives employers the option to post a notice of
potential COVID-19 exposure at the worksite (and on existing
employee portals) instead of providing written notice. That said,
employers subject to the Cal/OSHA Emergency Temporary Standard (ETS) still
appear to be required to give written notice of potential exposure
to employees, independent contractors, and other employers
regardless of the new section 6409.6 posting option. In
short, AB 2693 offers some relief to notification burdens, but also
adds potential confusion regarding when notifications are
required.
Key changes to Labor Code section 6409.6 include:
- Notice to the local public health agency is no longer required
in the event of an outbreak, but Cal/OSHA still requires disclosure
pursuant to its COVID-19 Prevention Program Regulation. - The California Department of Public Health (CDPH) is no longer
required to make workplace industry information regarding COVID-19
outbreaks and cases received from local public health departments
available on its website. - The definition of “close contact” was harmonized with
the CDPH and Cal/OSHA definition. - Employers may either provide a written notification or a
worksite posting of potential COVID-19 exposure. If using the
posting option, the employer must, within one business day of the
notice of potential exposure, prominently display a notice in all
places where notices to employees concerning workplace rules or
regulations are customarily posted (including on employee portals)
stating: -
- The dates on which an employee, or employee of a subcontracted
employer, with a confirmed case of COVID-19 was on the worksite
premises within the infectious period. - The location of the exposures, including the department, floor,
building, or other area, but the location need not be so specific
as to allow individual workers to be identified. - Contact information for employees to receive information
regarding COVID-19-related benefits to which the employee may be
entitled under applicable federal, state, or local laws, including,
but not limited to, workers’ compensation, and options for
exposed employees, including COVID-19-related leave, company sick
leave, state-mandated leave, supplemental sick leave, or negotiated
leave provisions, as well as an employee’s anti-retaliation and
anti-discrimination protections. - Contact information for employees to receive the cleaning and
disinfection plan that the employer is implementing per CDC
guidelines and under the Cal/OSHA COVID-19 Emergency Temporary
Standards COVID-19 prevention program. - The notice must remain posted for not less than 15 calendar
days. - The notice must be in English and the language understood by
the majority of employees. - The employer must keep a log of all the dates the notice
required by this section was posted at each of the employer’s
worksites.
- The dates on which an employee, or employee of a subcontracted
- If the employer uses the written notice option:
-
- The notice must be provided to all employees, and the employers
of subcontracted employees, who were at the same worksite premises
as the qualifying individual confirmed case of COVID-19 within the
infectious period, stating that they may have been exposed to
COVID-19. The notice must be provided in a manner the employer
normally uses to communicate employment-related information. - Written notice may include, but is not limited to, personal
service, email, or text message if it can reasonably be anticipated
to be received by the employee within one business day of sending
and shall be in both English and the language understood by the
majority of the employees. - Notably, the written notice does not appear to require the
detailed information of the aforementioned posting. Nonetheless,
the conservative approach would be to include the same information
in the written notice that is required in the posting option.
- The notice must be provided to all employees, and the employers
What does this mean for employers?
Employers should understand that while Labor Code section 6409.6
now allows for worksite posting of potential exposure notices, most
employers are also still subject to the written notice
requirements of the Cal/OSHA ETS.
The ETS still imposes obligations to, within one business day of
the time the employer knew or should have known about a COVID-19
case at the worksite, provide written notice (including the
cleaning and disinfection plan) to all employees, independent
contractors, and other employers on the premises at the same
worksite as a COVID-19 case during the infectious period.
The ETS likely still requires the employer (1) provide written
notice of potential exposure to the exclusive representative of
COVID-19 cases and employees who had close contact (the notice must
include the same information that would be required in an incident
reported on a Cal/OSHA Form 300 log), and (2) notify all employees,
employers of subcontracted employees, and exclusive representatives
of the cleaning and disinfection plan. These last two ETS
requirements reference the former Labor Code section
6409.6, which are now out of date. This also complicates
understanding what is required. This frustration was evident at the
recent Cal/OSHA Standards Board public hearing on a
proposed non-emergency COVID-19 standard.
Given the lack of clarity, and apparent contradictions between
the ETS and the new Labor Code section 6409.6, the most
conservative action, in addition to following section 6409.6, may
be to comply with the intent of the ETS and continue to provide all
written notices.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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