California enacts strict new COVID-19 notification law

Dive Brief:

A new California law that went into effect Jan. 1 allows state regulators to shut down jobsites that expose workers to an imminent hazard of COVID-19 infection, while eliminating a previously required 15-day rebuttal period for contractors to respond to any alleged “serious violations” related to COVID-19, according to the Associated General Contractors of California.
The state’s AB 685 law codifies much of the emergency temporary standard that California’s Division of Occupational Safety and Health Cal/OSHA implemented in November. But it also expands the notification requirements for employers, as well as Cal/OSHA’s policing powers for violations of infection prevention requirements aimed at stopping the spread of COVID-19 in the workplace.
“It can be a challenge for contractors to comply with,” said Brendan Carter, vice president of labor relations at AGC California. “The fact that Cal/OSHA has a lower enforcement threshold means contractors really need to be diligent to ensure they’re in full compliance with this.”

Dive Insight:

In November, following similar actions in Virginia, Oregon and Michigan, California adopted an emergency temporary standard around COVID-19 that spelled out employers’ requirements to have a written prevention plan that includes notification to employees of potential exposure, steps for removing COVID-19-positive and exposed workers from the workplace while protecting pay and benefits and notifying local health authorities of workplace outbreaks.

AB 685 spells out those notification requirements in greater detail, as well as the enforcement mechanisms for a “serious violation” related to violating COVID-19 infection prevention requirements, while eliminating the 15-day warning period the agency previously gave for contractors to respond to potential citations.

Cal/OSHA's definition of a serious violation is one where there is a realistic possibility that death or serious physical harm could result from a workplace hazard. AB 685 makes clear that potential exposure to COVID-19, due to an employer not taking steps to protect employees, falls under that definition.

While contractors can still appeal a citation from the agency, there’s no longer a way to head it off before the agency takes enforcement action, which can include an “Order Prohibiting Use,” or work stoppage, and fines of up to $25,000 per occurrence.

“It pretty much means you’re guilty until proven innocent,” said Brian Mello, AGC California safety manager. “AB 685 gives them the power to issue a serious violation without that 15-day notification and customary informal meeting to respond.”

The law has five notification requirements for contractors. Upon learning of any potential exposure in the workplace, within one business day, contractors must provide:

Written notice to all employees and employees of subcontractors, who were present at the worksite during the specified infectious period, which starts two days before symptoms appear and continues for at least 10 days, as well as those workers' unions.
Written notice to employees of COVID-19 benefits information that they are entitled to under applicable federal, state and local laws, such as California’s AB 1867, which requires that most employers with 500 or more U.S.-based employees pay COVID-19 sick leave benefits to state workers.
Written description to employees of disinfection protocols and safety plans to be implemented in the impacted areas.
Within 48 hours, notify local health authorities of a COVID-19 workplace outbreak, defined as three or more cases in a 14-day period, including the business address and NAICS industry code of the worksite, and then provide ongoing updates.
Maintain written records of all employee communications regarding any incidents for at least two years, according to AGC California.

AGC California also recommends contractors immediately retain counsel if cited for a Cal/OSHA COVID-19 citation to avoid the statute of limitations for appealing a citation.