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Employers’ AB 685 Compliance Guide

Employers’ AB 685 Compliance Guide

With the passage of California Senate Bill 1159 and Assembly Bill 685, employers will now play a central role in the fight against the spread of COVID-19. They are saddled with new responsibilities which have in the past, been borne mostly by public health professionals.

AB 685 will be effective on January 1, 2021. It is important for employers to prepare for these changes now. AB 685 enacts many new statutes; one of the most important is Labor Code Section 6409.6 mandating certain notice requirements.

What does AB 685 require?

At its core, Labor Code Section 6409.6 requires employers to provide specific written notices and information to its employees, subcontractors and to employee representatives (definition not specified), within one business day of learning that any employee, and in some situations the employee of a subcontracted entity, was exposed to a “qualifying individual” at the work location.

(1) Notice to Employer

Notice to the employer can be given by:

  • a public health official or licensed medical provider who notifies the employer that an employee was exposed to a Qualifying Individual;
  • an employee (or their emergency contact) who notifies the employer that the employee is a Qualifying Individual;
  • the testing protocol of the employer reveals that the employee is a Qualifying Individual;
  • or a subcontracted employer who notifies the employer that a Qualifying Individual was on the worksite of the employer receiving notification.

(2) Qualifying Individual

A “qualifying individual” means any person who has any of the following:

  • A laboratory-confirmed case of COVID-19;
  • Is diagnosed with COVID-19 by a licensed health care provider;
  • Is under a COVID-19-related order to isolate provided by a public health official; or
  • Has died due to COVID-19 as determined by the county public health department.

The definition notably states “any person” which means that this qualifying person doesn’t have to be an employee. It can include a customer, student, subcontractor worker, special employee, visitor, member of the public, licensee, trespasser; basically, anyone.

(3) Work Location/Worksite

The “worksite” is defined as the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter. In a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualifying individual.

(4) What to do Next?

If all three elements above are met, then the employer will be mandated to partake in the detailed notice and reporting process outlined by AB 685. The employer must provide to all employees who “may have been exposed”:

  • Information regarding COVID-19-related benefits that the employee(s) may be entitled to receive, including workers’ compensation benefits, COVID-19 related leave, company sick leave, paid sick leave, supplemental paid sick leave, as well as the organization’s anti-retaliation and anti-discrimination policies.
  • The employer must also provide the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

Further, employers should not include the name of, or any identifying information related to, the Qualifying Individual (or of the employee exposed to the Qualifying Individual, if applicable).

The notice must be written and given in a manner the employer normally uses to communicate employment-related information. For example, if the employer regularly communicates workplace updates to employees via email, the notice must be provided via email. Personal service or text are other options. The notices must be maintained by the employer for a period of three (3) years.

This law, burdens employers, many of whom are struggling to survive in the pandemic, with the quasi-medical responsibilities usually undertaken by public health departments and contact tracers.

Moreover, many elements of the law are vague and ambiguous. For example, this law requires notice to employees potentially exposed “during the infectious period.” Presently, the California Department of Public Health defines the Infectious Period as 14 days, including, at a minimum, the 48 hours before the individual developed symptoms. The law does not address when the Infectious Period begins for asymptomatic individuals. In those cases an employer may have to ask the Qualifying Individual contact tracing questions to determine when the individual first came into contact with a COVID-19-positive individual, but there is nothing in the law requiring the the Qualifying Individual to an answer.

Ready to comply with SB 1159 and AB 685?

RTGR Law LLP supports California employers and claims departments and helps:

  • Craft timely SB 1159 and AB 685 employer reporting and notification procedures and tools;
  • Develop retrospective claims review policies & protocols;
  • Build investigation best practices and WCAB litigation strategies for COVID-19 presumption defenses;
  • Use the interactive process to manage COVID-19 disability and quarantine accommodations;
  • Strategically manage COVID-19 Workers’ Damages lawsuits & the Exclusive Remedy defense; and
  • Secure COVID-19 Excess WC insurance coverage.

We post updates here and on our LinkedIn page. Be sure to follow us to stay current.

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