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September 2020

AB 685 – Labor Code 6409.6 Provides COVID-19 Employer Notification Protocol

Overview: Effective January 1, 2021 employers must provide written notice to employees within one business day if the employer is notified of COVID-19 exposure. The employer must keep records of this confidential notification for at least three years.

Who: Notice is required when the employer learns of an employee with:

  • A laboratory-confirmed case of COVID-19;
  • A positive COVID-19 diagnosis from a licensed health care provider;
  • A COVID-19 related isolation order issued by a public health official; or
  • Death due to COVID-19 as determined by the County public health department.

The employer may learn of the notice of potential exposure from (1) the employee; (2) a public health official or medical provider; (3) the employer’s testing protocol; or (4) a subcontracted employer.

When: Within one business day of being informed of an employee’s potential exposure to COVID-19, employers must provide written notice to all employees at the same worksite as the infected person who worked during the infectious period.

How: The notice must be sent in a manner the employer normally uses to communicate with its employees including personal service, email or text. 

  • The notice must be sent to all employees at the worksite of the infected person:
    • Worksite means the building, store, facility, agricultural field, or other location where a worker worked during the infectious period and does not include any location the infected employee did not enter;
    • Infectious period means, at a minimum, 48 hours before the infected individual developed symptoms.
  • The notice must be in English and the language understood by the majority of employees.
  • The notice must also go to the employees’ union representative or attorney, if any.

What: In addition to notice of the potential exposure, the notice must contain the following information:

  • 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;
  • A statement that the employer will not retaliate or discriminate against employees for having COVID-19 or seeking leave for COVID-19 related reasons.
  • A statement regarding the disinfection and safety plan the employer plans to implement and complete per the guidelines of the CDC.

Failure to comply with these requirements may subject the employer to a civil penalty. Employers are prohibited from requiring employees to disclose medical information except as required by law, and are prohibited from retaliating against an employee for disclosing a qualifying case of COVID-19.

Notification of a COVID-19 Outbreak

Under Labor Code section 6409.6(b), employers must notify the local public health department within 48 hours of notice of a COVID-19 “outbreak” (as defined by the CDPH).  The CDPH currently defines an “outbreak” as “three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period.”  The notice must identify the number of qualifying individuals, the name, occupation, and worksite for those individuals, the employer’s business address, and the NAICS code of the worksite.  Following the reporting of an outbreak, the employer must continue to give notice to the local health department of any subsequent laboratory-confirmed cases at the worksite.

Employment Law

Talia L. Delanoy

Employment Law