On September 17, 2020, Governor Gavin Newsom signed Assembly Bill 685 (“AB 685”) into law, and in doing so amended provisions of California’s Health and Safety and Labor Codes. AB 685 explicitly amended Labor Code section 6409.6 to grant California’s Division of Occupational Safety and Health (“DOSH” or “Cal OSHA”) authority to issue: (1) Orders Prohibiting Use (“OPU”) in certain circumstances where COVID-19 presents an imminent hazard, and (2) citations alleging serious violations of occupational health and safety requirements related to COVID-19 without giving employers 15-day pre-citation notice.  The law also mandates a written notification to all employees following known potential exposure to COVID-19 in the workplace, which Cal OSHA has authority to enforce, and notification to local and state public health departments of COVID-19 “outbreaks.”

As the California Department of Public Health (“CDPH”) had previously issued guidance to California employers and businesses in the form of a playbook, which defined an “outbreak”, and the state’s regulatory framework gives CDPH responsibility for management of communicable diseases, AB 685 left the definition of ”outbreak” up to CDPH.

On October 16, 2020, CDPH issued additional guidance on AB 685 with the following definitions:

1. COVID-19 “outbreak”:

   • A COVID-19 outbreak is defined in a non-healthcare workplace as at least three COVID-19 cases among workers at the same worksite within a 14-day period.

     • Under AB 685, a COVID-19 case is someone who:

       • Has a positive viral test for COVID-19,

       • Is diagnosed with COVID-19 by a licensed health care provider,

       • Is ordered to isolate for COVID-19 by a public health official, OR

       • Dies due to COVID-19, as determined by a public health department.

• Under AB 685 Section 4 (Labor Code Section 6409.6, subsection (a)(4(b)), if an employer or their representative is notified of the number of cases meeting the definition of a COVID-19 outbreak, they must notify the local public health agency in the jurisdiction where the worksite is located.

• Non-healthcare employers must therefore report to the local public health agency when three or more workers with COVID-19 are identified within a 14-day period.

• Health facilities, who are exempt from AB 685’s mandate to report outbreaks to local health departments, should follow CDPH reporting guidance for healthcare facilities.

2. Infectious period:

   • For an individual who develops COVID-19 symptoms, the infectious period for COVID-19 begins 2 days before the individual first develop symptoms. The infectious period ends when the following criteria are met: 10 days have passed since symptoms first appeared, and at least 24 hours have passed with no fever (without the use of fever-reducing medications), and other symptoms have improved.

   • For an individual who tests positive but never develops symptoms, the infectious period for COVID-19 begins 2 days before the specimen for their first positive COVID-19 test was collected. The infectious period ends 10 days after the specimen for their first positive COVID-19 test was collected.

   • Under AB 685 Section 4 (Labor Code Section 6409.6, subsection 1), employers must provide notice to all employees who were present at the same worksite as someone with COVID-19 during their infectious period.

3. Laboratory-confirmed case of COVID-19:

   • A laboratory-confirmed case of COVID-19 is defined as a positive result on any viral test for COVID-19.

CDPH’s guidance goes on to convey that healthcare facilities, who are exempt from AB 685’s mandate to report outbreaks to local health departments, should follow CDPH reporting guidance for healthcare facilities.

In addition to the Definitions, the CDPH also published a memorandum on “Employer Questions about AB 685, California’s New COVID-19 Law.”  The questions provide some general insight for employers on AB 685’s employee notification requirements as well as the reporting requirements to local health departments.

The guidance states employers must report all COVID-19 outbreaks to their local health department.  Once the threshold for an outbreak is met, meaning three or more positive cases have occurred within a 14-day period, employers have 48 hours to report the cases to the local health department having jurisdiction over the worksite location.

Following an outbreak notification, employers also must continue to notify the local health department of any new COVID-19 cases identified among workers at the worksite and cooperate with the health department’s investigation.

Initial reports to Local Health Departments should generally include:

1. Information about the worksite – the name of company/institution, business address, and North American Industry Classification System (“NAICS”) industry code.

2. Names and occupations of workers with COVID-19.

3. Additional information requested by the local health department as part of their investigation.

Notification and reporting requirements under AB 685 go into effect on January 1, 2021, and will last until January 1, 2023, and may be further extended. Until the outbreak notification requirements under AB 685 go into effect, California employers should still be aware that they may have notification obligations under standing local health department orders.