CalOSHA and AB-685

As of January 1, 2023, provisions of AB 685 are no longer in effect. Employers should consult Labor Code 6409.6 and the Cal/OSHA COVID-19 Prevention Non-Emergency Regulations to ensure that they are in compliance with current requirements regarding employee notification of COVID-19 cases in the workplace.

COVID-19 Prevention Non-Emergency Regulations 

COVID-19 Prevention Non-Emergency Regulation: What Employers Need to Know 

Labor Code 6409.6

COVID-19 and Businesses 

 

LABOR CODE - LAB

DIVISION 5. SAFETY IN EMPLOYMENT [6300 - 9254]

  
 
( Division 5 enacted by Stats. 1937, Ch. 90. )

  

PART 1. OCCUPATIONAL SAFETY AND HEALTH [6300 - 6725

( Heading of Part 1 amended by Stats. 1973, Ch. 993. )

  

CHAPTER 3. Responsibilities and Duties of Employers and Employees [6400 - 6413.5]

( Chapter 3 repealed and added by Stats. 1973, Ch. 993. )

 

 

6409.6.  

(a) In each worksite of the employer, the employer shall prominently display a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted stating all of the following:

(1) 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.

(2) 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.

(3) 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 antiretaliation and antidiscrimination protections of the employee.

(4) Contact information for employees to receive the cleaning and disinfection plan that the employer is implementing per the guidelines of the federal Centers for Disease Control and Prevention and the COVID-19 prevention program per the Cal-OSHA COVID-19 Emergency Temporary Standards.

(b) The notice described in subdivision (a) shall be posted within one business day from when the employer receives a notice of potential exposure and remain posted for not less than 15 calendar days.

(c) If the employer posts other workplace notices on an existing employee portal, the notice described in subdivision (a) shall be posted on the employee portal.

(d) The notice shall be in English and the language understood by the majority of employees.

(e) As an alternative to the notice described in subdivision (a), the employer may provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the confirmed case of COVID-19 within the infectious period that they may have been exposed to COVID-19 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.

(f) An employer shall keep a log of all the dates the notice required by this section was posted at each worksite of the employer, and shall allow the Labor Commissioner to access these records pursuant to the requirements set forth in Section 1174.

(g) The employer shall 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 shall 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. This requirement shall apply regardless of whether the employer is required to maintain a Cal/OSHA Form 300 injury and illness log. Notifications required by this section shall not impact any determination of whether or not the illness is work related.

(h) For purposes of this section, the following definitions apply:

(1) “Close contact” means an individual who has been in close contact with a confirmed case of COVID-19, as defined by the division.

(2) “Confirmed case of COVID-19” means an individual who has been infected with COVID-19, as defined by the State Department of Public Health.

(3) “COVID-19” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).

(4) “Infectious period” means the time a confirmed case of COVID-19 is infectious, as defined by the State Department of Public Health.

(5) “Notice of potential exposure” means any of the following:

(A) Notification to the employer or their representative from an employee, their emergency contact, a public health official, or a licensed medical provider that an employee has a confirmed case of COVID-19 and was on the worksite premises within the infectious period.

(B) Notification through the testing protocol of the employer that an employee has a confirmed case of COVID-19 and was on the worksite premises within the infectious period.

(C) Notification to an employer or their representative from a subcontracted employer that their employee has a confirmed case of COVID-19 and was on the worksite premises within the infectious period.

(6) “Worksite” means 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 an individual with a confirmed case of COVID-19 did not enter, locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.

(i) An employer shall not require employees to disclose medical information unless otherwise required by law.

(j) An employer shall not retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate. Workers who believe they have been retaliated against in violation of this section may file a complaint with the Division of Labor Standards Enforcement pursuant to Section 98.6. The complaint shall be investigated as provided in Section 98.7.

(k) This section shall not apply to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID-19, are persons under investigation, or are in quarantine or isolation related to COVID-19, unless the confirmed case of COVID-19 is an employee at the same worksite.

(l) No personally identifiable employee information shall be subject to a California Public Records Act request or similar request, posted on a public internet website, or shared with any other state or federal agency.

(m) An employer shall maintain records of the written notifications required in subdivision (a) or (e) for a period of at least three years.

(n) The division shall enforce this section by the issuance of a citation alleging a violation of this section and a notice of civil penalty in a manner consistent with Section 6317. Any person who receives a citation and penalty may appeal the citation and penalty to the appeals board in a manner consistent with Section 6319.

(o) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.

(Amended by Stats. 2022, Ch. 799, Sec. 3. (AB 2693) Effective January 1, 2023. Repealed as of January 1, 2024, by its own provisions.)