Highlights of California Assembly Bill No. 685

On September 17, 2020, California Governor Newsom approved Assembly Bill 685, or “COVID-19: Imminent Hazard to Employees: Exposure, Notification, Serious Violations.”  AsCOVID-19 has continued to spread throughout California, AB685 is focused on tracking workplace exposure, gathering, and sharing accurate data, and leveraging that data to keep employees safe.  AB685establishes guidelines for employers’ duty to report information on COVID-19outbreaks.  Positive COVID-19 tests and diagnoses must be immediately reported to the workforce, to members of the public, to insurance carriers, and to state agencies.  

NOTICE OF IMMINENT HAZARD:

AB 685 (1) requires a conspicuous notice of any unsafe condition that constitutes an imminent hazard. This imminent hazard may be a dangerous condition, or an improperly guarded or dangerously placed object in a certain area.  This prohibition notice is required to be within the immediate area in which the imminent hazard exists.  This notice may only be removed by an authorized representative.  Violation of this provision regarding dangerous conditions is a crime.

This bill authorizes the Division of Occupational Safety & Health (i,e, “The Division”) to prohibit business operations or entry into a business when it has found a place of employment exposes workers to the risk of COVID-19.  This bill requires the Division to provide a Notice to the employer, and that notice must be posted in a conspicuous place at the place of employment.   This business prohibition must be limited to the immediate area in which the imminent hazard (ie, risk of COVID-19) exists. The prohibition must be issued in a manner that does not materially interrupt the performance of critical government functions that are essential to ensuring public health and safety functions, or the delivery of electrical power or water.  

This COVID-19 imminent hazard provision will be repealed on January 1, 2023.

NOTICE OF COVID-19 EXPOSURE:

AB 685(2) acknowledges that existing law requires an employer to file a report (with the Department of Industrial Relations) of every occupational injury/illness of each employee that results in lost time beyond the date of the injury or illness, and that requires medical treatment beyond first aid.  The bill also reiterates existing law that requires an employer to immediately report as serious occupational injury, illness, or death to the Division by telephone or email, as specified.

Additionally, this bill would require all employers that receive a notice of potential exposure to COVID-19to provide specified notifications to its employees within one business day of the notice of potential exposure. The employer is also required to provide notice to all employees (including employers of sub-contracted employees), who were on the premises at the same time as the employee infected with COVID-19, that they may have also been exposed to COVID-19.  

NOTICE OF COVID-19 RELATEDBENEFITS & DISINFECTION PLAN:

The employer is required to provide its employees with information regarding COVID-19 related benefits and options. The employer must also give notice of a disinfection and safety plan.  The employer must implement and complete this plan pursuant to the guidelines of the federal Center for Disease Control (CDC). The employer must maintain records of COVID-19 notifications for at least 3 years.  There is a civil penalty for any employer who violates these notification requirements.  

REPORTING A COVID-19 OUTBREAKWITHIN 48 HOURS:

If the employer is informed of a certain number of COVID-19 infections that meet the definition of an “outbreak”, the employer is required to report the outbreak to the local public health agency in the worksite jurisdiction within 48 hours.  In the event of a COVID-19 outbreak, the employer must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. Health facilities are exempt from this reporting requirement.

STATE DEPARTMENT REQUIRED TOPROVIDE INFORMATION ON COVID-19 OUTBREAKS:

The State Department of Public Health is required to provide information on COVID-19 outbreaks publicly available on its internet website. Local public health departments and OSHA are also required to provide a link to this page on its internet websites.

REBUTTABLE PRESUMPTION OF A"SERIOUS VIOLATION”

AB 685(3) creates a rebuttable presumption that a “serious violation” exists in a place of employment if OSHA can show there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. Before OSHA will issue a citation alleging that a violation is serious, the employer will be required to make a reasonable attempt to determine and consider certain facts. This OSHA requirement is satisfied if the safety division sends, at least 15days before issuing the citation, a standardized form describing the allegedly serious violation.  OSHA will allow an employer to rebut the presumption of a serious violation, and there are inferences that may be drawn at a hearing with regarding to the information provided by an employer in rebuttal of the presumption.  A citation related to a COVID-19 is exempted from the standardized forms required.

This exemption will be repealed on January 1, 2023.

REIMBURSEMENT TO LOCAL ANDSCHOOL AGENCIES FOR SPECIFIC MANDATES:

AB 685(4) The California Constitution requires the State to reimburse local agencies and school districts for certain costs mandated by the state.  However, this bill provides that no reimbursement is required by this act for certain instances.  Any reimbursement requests will be determined by the Commission on State Mandates.

LIMITING THE RIGHT OF ACCESS

AB 685(5) Pursuant to the California Constitution, a statute that limits the right of access to the meetings and writings of public bodies, officials and agencies will be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

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AB685 is a complicated piece of legislation, and the above is not intended to be a complete summary of the bill. If you require further analysis or an application of the above to a workers’ compensation claim, please contact us.

Written by: Caroline Song Lloyd, Esq.                                   Dated: January 12, 2021

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