On September 29, 2022, Governor Gavin Newsom signed Assembly Bill 2693, which sets new requirements relating to COVID-19 exposure notification. With the signing of this bill, the laws governing COVID notifications, which had been set to expire on January 1, 2023, are now extended an additional year to January 1, 2024.
In addition to extending the term of the existing law, the bill expands the options available to California employers for informing their employees of a possible COVID exposure and creates new record-keeping requirements.
Notification Methods
The law now provides two methods for notifying employees of a COVID exposure in the workplace. Employers may either provide notice directly to employees (as was the case under the prior law), or they may post exposure notices in the workspace.
When notifying employees directly, employers must provide written notice through a normal means of communication, including email or text messages. That notice must be given to all employees who were on premises in the same worksite as the employee with the confirmed case of COVID within the infectious period and who may have been exposed to COVID-19. In addition, the employer using this method must also inform the employers of any subcontracted employees about the potential exposure.
Employers choosing, instead, to post a notice may do so by prominently displaying a notice that contains:
1. The dates on which the employee (or subcontracted employee) was on premises within the infectious period,
2. The location of the exposure, including (to the degree it does not identify the individual COVID-positive worker) the department, floor, building, or other area of exposure,
3. Contact information for employees to receive information regarding COVID-19-related benefits and options for COVID-19 and other forms of leave, as well as anti-retaliation and antidiscrimination protections, and
4. Contact information to receive the cleaning and disinfection plan that the employer is implementing under the relevant CDC and Cal-OSHA guidelines.
The notice must be posted within one business day of the employer learning of the exposure, and must remain posted for at least 15 calendar days. The notice must be posted in an area where other workplace rules and regulations are customarily posted, as well as on any existing online portal where notices are posted for employees.
Notice Log Requirement
Assembly Bill 2693 creates a new requirement that employers track their COVID exposure notifications. Specifically, the law requires employers to keep a log of all dates on which an exposure notice was posted at their worksites. This log must be furnished to the Labor Commissioner upon request.
Regardless of the notification method used, records of written notifications must be maintained for a period of at least three years.
Special Considerations
Regardless of which method of notice is used, multilingual and non-English speaking workplaces will want to be mindful of the law’s requirement that notice be provided in both English and “the language understood by the majority of employees.”
Additionally, employers with a unionized workforce are required to provide an additional written notice to the employees’ exclusive representative of any confirmed cases of COVID-19 and of the employees who had close contact with that employee.
Finally, the law also amends the definition of “close contacts” for purposes of COVID notifications. Previously, the statute considered a close contact to be anyone who spent 15 minutes or more within six feet of an infectious person. Now, the definition has been amended to refer to the definition provided by the Division of Occupational Safety and Health. Note that Cal OSHA adopts the definition provided by the California Department of Public Health ("CDPH"), which as of the date of this alert, defines close contact to mean, “someone sharing the same indoor airspace, e.g., home, clinic waiting room, airplane etc., for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes) during an infected person's (laboratory-confirmed or a clinical diagnosis) infectious period.” The definition of “infectious period” is also defined by CDPH. This means employers should remain vigilant to changes in that definition as the COVID-19 pandemic ebbs and flows. Please see this link for the most up-to-date information: Guidance on Isolation and Quarantine for COVID-19 (ca.gov).
For additional guidance and recommendations regarding this recent change in law we encourage you to reach out to the author of this article and your trusted employment counsel at Gordon & Rees.