Effective January 1, 2023, California employers must continue to provide notification to employees of COVID-19 exposure in the workplace through 2023, but will be able to satisfy the notification obligation by displaying a notice in the workplace. On September 29, Governor Gavin Newsom signed AB 2693 into law, revising and extending the existing obligation for employers to notify workers of potential exposure to COVID-19 in the workplace. Here’s what California employers need to know.
Extended sunset date
Although the employer COVID-19 notice requirement was formerly scheduled to expire on January 1, 2023, AB 2693 extends the requirement’s sunset date to January 1, 2024.
Notification can be satisfied through posting
The amendment applies “in each worksite of the employer,” and allows employers to provide the required notification by prominently displaying a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted. The notice must be in English and the language understood by a majority of the employees, and provide:
- 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 that employee’s infectious period
- The location of the exposures, including the department, floor, building, or other area (but this information should not be so specific as to allow the infectious individual to be identified)
- Contact information for employees to receive information regarding COVID-19-related benefits to which they may be entitled under applicable federal, state, or local laws
- Contact information for employees to receive the cleaning and disinfection plan the employer is implementing under Centers for Disease Control and Prevention and Cal-OSHA COVID-19 Emergency Temporary Standards
If an employer is providing notification through a workplace posting, the notice must be posted within one business day from when the employer learns of the potential exposure and must remain posted for not less than 15 calendar days. And if an employer posts other types of workplace notices on an existing employee portal, the notice must also be posted on the employee portal.
Alternative means of notice
Instead of providing posted notice, employers can revert to prior requirements and provide written notice to all employees, and employers of subcontracted employees, who were on the premises at the same worksite as a confirmed case of COVID-19. As before, this notice must be provided in the manner the employer normally uses to communicate employment-related information (such as personal delivery, email or text message) if it can reasonably be anticipated to be received by the employee within one business day of sending.
Employers are required to keep a log of all the dates the required notice was posted at each worksite of the employer, and must allow the Labor Commissioner to access these records.
Notice to the exclusive representative
Employers are required to provide a written notice to the exclusive representative, if any, of confirmed cases of COVID-19 and of employees who had close contact with the confirmed cases of COVID-19 within one business day. This notice must contain the same information as would be required in an incident report in a Cal/OSHA Form 300 injury and illness log unless the information is inapplicable or unknown to the employer.
Notification to the public health agencies no longer required
Employers no longer need to notify the local public health agency of a COVID-19 outbreak (as defined by the California Department of Public Health), except in specific circumstances.
Potential Conflict with Proposed Cal/OSHA COVID-19 Non-Emergency Regulation
One wrinkle resulting from AB 2693 is its apparent conflict with Cal/OSHA’s proposed COVID-19 Prevention – Non-Emergency Regulation (“Proposed Cal/OSHA Standard”) which, if adopted, would also take effect on January 1, 2023. Under the Proposed Cal/OSHA Standard, employers who learn of a COVID-19 case at the worksite are required to “notify employees and independent contractors who had a close contact.” Unlike the Proposed Cal/OSHA Standard’s other notification requirements, the employer obligation to notify close contacts does not incorporate Labor Code section 6409.6. In other words, while the new worksite posting option will satisfy employers’ Labor Code section 6409.6 obligation, it remains unclear whether it will also satisfy the Proposed Cal/OSHA Standard’s close contact notification obligation. The California Occupational Safety and Health Standards Board discussed the Proposed Cal/OSHA Standard at its last public hearing on September 15. The Board has not announced whether it will continue those discussions at its upcoming October 20 public hearing.
For help with AB 2693 or any of your other employment needs, contact your Baker McKenzie employment attorney.