In the last month, the State has updated guidance and requirements on two important COVID-19-related subjects: (1) who qualifies as a “close contact” after a workplace exposure; and (2) what notice employers must provide in the event of a workplace exposure. This bulletin reviews these changes in the law and provides advice as to how employers may revise their policies and practices in order to comply with the new and forthcoming requirements.
Updated Definition of “Close Contact”
On October 14, 2022, the California Department of Public Health (“CDPH”) issued an order updating its definition as to who constitutes “close contact” after being exposed to COVID-19. This update is intended to resolve ambiguity in the prior definition and provide clarity to employers and employees as to who qualifies as a “close contact.”
Previously, the CDPH defined a close contact as someone who shared the “same indoor air space” as an infected person for 15 cumulative minutes or more. The use of the phrase “same indoor air space” was vague and ambiguous and caused confusion among employers and employees as to how to determine whether workers shared the “same indoor airspace” in workplaces of different sizes and dimensions.[1]
In order to address this issue and resolve the lack of clarity concerning what constituted the “same indoor air space” the CDPH updated the definition of “close contact” to provide two different definitions which depend on the size of the space in which the exposure occurs and whether the contact is likely to result in sharing of the “same indoor air space.”
The CDPH now defines the term “close contact” in the following ways:
In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.
Since this new definition is now operative, employers should use these definitions in order to determine whether a workplace exposure constitutes a “close contact.” To do so, employers must first determine the size of their workplaces, evaluating the size of each floor of the facilities that they operate in order to assess whether the floor exceeds the threshold level (i.e., 400,000 cubic feet) in order to qualify as “large indoor spaces” or not. After making such a determination, employers must evaluate COVID-19 exposures on such floors according to the applicable definition of “close contact” in order to determine whether the exposure satisfied the definition.
In the event that the exposure resulted in a “close contact”, employers should discharge their obligations pursuant to pertinent regulatory requirements, including, but not limited to providing the “close contact” with no-cost COVID-19 testing.[2] Employers should also review operative obligations related to the exclusion of “close contacts” from the workplace in order to ensure compliance with such requirements and to limit the further transmission of COVID-19 in the workplace.
Updated Notice Requirements in the Event of a Workplace Exposure
Relatedly, Governor Newsom recently signed into law Assembly Bill (“AB”) 2693, which revises the notice requirements set forth under Labor Code Section 6409.6 that apply in the event that there is a workplace exposure. While these requirements do not take effect until January 1, 2023, now is a good time for employers to review and modify their policies and practices.
AB 2693 makes two significant changes to requirements set forth under Labor Code Section 6409.6, including (1) changing the ways that employers may provide notice to employees in the event of a workplace exposure, and (2) discontinuing the requirement to provide notice to local health departments.
Options for Providing Notice
Most significantly, AB 2693 provides employers a second option as to how they may discharge their notice obligations in the event of a workplace exposure.
The Labor Code now provides two means by which employers may satisfy their notice obligations, including: (1) by written notice to all employees as is currently required under existing law; or (2) by posting notice at the physical worksite.
In the event that the employer elects to discharge its statutory obligations by posting notice, the employer must also post the notice to an employee portal (e.g., intranet) if it maintains such a portal and posts similar notices to that site.[3]
Written Notice
As provided above, employers may elect to continue to provide written notice of workplace COVID-19 to employees and the employee organizations, if any, that represent such employees.
Employers that elect to provide notice in this manner must provide written notice to all employees who were on the premises of the worksite where the COVID-19 case was present. The notice must be provided in the same manner that the employer normally uses to communicate employment-related information (e.g., mail, email, or text) so long as it is reasonably anticipated to be received with one (1) day. The notice must be in English and any other language that is understood by the majority of employees.[4]
Notably, the Labor Code does not expressly require that employers who elect to provide written notice include specific information concerning the COVID-19 case that, as discussed below, is required should the employer post notice of the exposure. However, despite the omission of this requirement from the statute, the Cal-OSHA COVID-19 Emergency Temporary Standards (“ETS”) requires that employers maintain records concerning COVID-19 cases in the workplace that includes similar information.[5] As a result, it is advisable that employers also include in the written notice all of the information that must otherwise be included in notice postings. Including such information will allow employers to demonstrate their best efforts to comply with the spirit, if not the letter, of the law, demonstrate compliance with the ETS, and demonstrate their interest in mitigating the risk of transmission in the workplace.
Posting of Notice
Employers that elect to post notice of workplace exposures, rather than provide written notice to employees, must post such notices at the worksite within one (1) day of the workplace exposure. The notices must be posted in all places where notices are regularly posted, remain posted for 15 days[6], and be in English and the language understood by the majority of employees.[7]
In terms of the contents of posted notices, the notices must contain the following information:
- 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.[8] NOTE: While it is not expressly required, employers should consider providing notice in the event that it becomes aware that an individual other than an employee or a contractor (g., member of the public) with COVID-19 was present at a workplace. [9]
- The location of the exposure, such as the building, department, floor where the COVID-19 case was present. [10] NOTE: Employers should not provide the specific location where the COVID-19 case was present if doing so would identify the individual and compromise their confidentiality.[11]
- Contact information for an individual in Human Resources where employees can obtain information regarding COVID-19-related benefits to which employees may be entitled under applicable federal, state, or local laws. These benefits may include, but are not limited to, workers’ compensation, COVID-19-related leave[12], employer-provided sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions. The notice must also indicate that employees are protected by anti-retaliation and anti-discrimination laws in case employees use protected leave for reasons related to COVID-19.[13]
- Contact information for an individual in Human Resources or Risk Management where employees can request and receive information concerning the employer’s cleaning and disinfection plan that the employer. NOTE: Employers must adhere to the cleaning and disinfecting guidelines established by the Centers for Disease Control and Prevention (“CDC”) and the Cal-OSHA COVID-19 Emergency Temporary Standards[14] (“ETS”).[15]
Relatedly, employers must provide 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.[16] Such notice must contain the same information as would be required in an incident report.
Employers must also maintain records of all the dates that notices were posted following workplace exposures. Employers must be prepared to provide the Labor Commissioner access to such records.[17]
As provided above, while the statue does not expressly require that employers who elect to provide written notice to employees maintain records of the notice that they provide to employees, employers should nevertheless maintain such records and be prepared to provide the Labor Commissioner to access to them.
Bargaining Changes to Notice
If an employer with a represented workforce elects to change the manner in which it is providing notice to employees in the event of a workplace exposure, it should be prepared to meet and confer with the employee organizations regarding the proposed change.
The manner in which an employer provides notice to its employees in the event of a workplace exposure is a term and condition of employment and a mandatory subject of bargaining. As such, under the Meyers-Milias-Brown Act (“MMBA”), the National Labor Relations Act (“NLRA”), and other labor relations statutes, entities must provide employee organizations notice and an opportunity to bargain any change to the manner in which they provide notice.
Notice to Local Health Departments
Finally, beginning January 1, 2023, notification to the local health department in the event of a COVID-19 outbreak is no longer required. Previously, if three or more employees at a work location or area contracted COVID-19 within a 14-day period, this was considered a COVID-19 outbreak, which triggered further employer obligations, including notice to the local health department. This notice is no longer required.
Liebert Cassidy Whitmore attorneys are closely monitoring developments at all levels of governance in California and are able to assist employers in complying with these new requirements and in working with labor to change employer notice practices.
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[1] In the event an employee qualifies as a “close contact,” the employee is entitled to no-cost COVID-19 testing (8 CCR 3205(c)(3)(B)(5)) and may be subject to exclusion from the workplace (8 CCR 3205(c)(9)).
[2] See Footnote 1, above.
[3] Labor Code § 6409.6(a).
[4] Labor Code § 6409.6(e).
[5] The ETS currently requires employers to keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. (8 C.C.R. § 3205(c)(8)(D).)
[6] Labor Code § 6409.6(b).
[7] Labor Code § 6409.6(d).
[8] Labor Code § 6409.6(a)(1).
[9] In order to demonstrate compliance with general workplace safety obligations, it is best practice to also post such notice when a member of the public with a confirmed case of COVID-19 was on the worksite premises within the infectious period.
[10] Labor Code § 6409.6(a)(2).
[11] Confidentiality of Medical Information Act, Civil Code § 56.20.
[12] Supplemental Paid Sick Leave expires on December 31, 2022 (Labor Code § 248.6(f).).
[13] Labor Code § 6409.6(a)(3).
[15] Labor Code § 6409.6(a)(4).
[16] Labor Code § 6409.6(g).
[17] Labor Code § 6409.6(f).
