Download pdf: 57-2020 – Employer Notice Obligations Related to COVID-19 Exposure and Outbreaks (AB 685) (NLK)
Effective January 1, 2021, Labor Code section 6409.6 requires employers to notify certain employees, their exclusive representatives, and employers of contracted employees, within one business day, after the employer receives a “notice of potential exposure” to COVID-19, and to notify the local public health agency, within 48 hours, after learning of a “COVID-19 outbreak” at a worksite.
A “notice of potential exposure” means notice (1) from a public health officer or licensed medical provider that an employee was exposed to a “qualifying individual” at the “worksite”, (2) from an employee or the employee’s emergency contact that the employee is a “qualifying individual”, (3) pursuant to the employer’s testing protocol that an employee is a “qualifying individual”, or (4) from a subcontracted employer that a qualifying individual was on the worksite of the employer. (Labor Code section 6409.6 (a)(1))
A “qualifying individual” means a person (1) who has a laboratory-confirmed case of COVID -19, a positive COVID-19 diagnosis from a licensed health care provider, or a COVID -19-related order to isolate provided by a public health official or (2) who died due to COVID-19, as determined by the county public health department or per inclusion in the county COVID-19 statistics. (Labor Code section 6409.6 (d)(4))
I. Written Notice to Employees and Employers of Subcontracted Employees within One Business Day
A. Notify all employees and employers of subcontracted employees who were on the premises of the same “worksite” as the “qualifying individual” within the “infectious period” of potential exposure to COVID-19. (Labor Code section 6409.6 (a)(1)
- “Infectious period” means the time a COVID-19-positive individual is infectious, as defined by the California Department of Public Health (CDPH). (Labor Code section 6409.6 (d)(3))
- “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 a qualified individual did not enter. (Labor Code section 6409.6 (d)(5))
B. Content of the Written Notice
The notice must include the information below.
1. The employee may have been exposed to COVID 19. (Labor Code section 6409.6 (a)(1))
2. Information regarding COVID-19-related benefits to which the employee may be entitled, such as:
a. Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA),
b. Leave pursuant to the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA),
c. Worker’s Compensation,
d. Sick Leave,
e. Extended Illness Leave (Differential / 50% Leave), and
f. Rights specified in the employee’s collective bargaining agreement or an applicable MOU.
3. The “disinfection and safety plan that the employer plans to implement and complete per [CDC] guidelines.” (Labor Code section 6409.6 (a)(3) and (a)(4))
C. Form and Transmittal of Written Notice
- The notice must be provided in English and in the language understood by the majority of employees.
- The written notice may be provided by personal service, email, text, or other method “if it can reasonably be anticipated to be received by the employee within one business day of sending. (Labor Code section 6409.6 (a)(1))
II. Written Notice to the Exclusive Representative, if any, within One Business Day
Notify the exclusive representative of employees entitled to receive written notice, as specified in Section I, of the following:
A. Information regarding COVID-19-related benefits, to which the employees may be entitled (See Section I.B., above);
B. The “disinfection and safety plan that the employer plans to implement and complete per [CDC] guidelines;” and
C. The information 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. (NOTE: This requirement applies regardless of whether the employer is required to maintain a Cal/OSHA Form 300 log.) (Labor Code section 6409.6 (a)(2), (a)(3), and (c))
III. Notice to the Local Public Health Agency within 48 Hours
If the employer is notified of a sufficient number of cases at a worksite to constitute a “COVID-19 outbreak,” as defined by the State Department of Public Health, within 48 hours, the employer must notify the local public health agency in the jurisdiction of the worksite of:
A. The names, number, occupation, and worksite of employees who are “qualifying individuals,” and
B. The business address and North American Industry Classification (NAIC) code of the employees’ worksites. (Labor Code section 6409.6 (b))
A “COVID-19 outbreak” means “three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period.”
IV. Maintenance of Records and Prohibition of Retaliation / Enforcement
A. Three Years
Employers are required to maintain records of the written notifications to employees and their exclusive representatives, if any, for a period of at least three years. (Labor Code sec. 6409.6(k))
B. Retaliation is Prohibited
Retaliation against any worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate is prohibited. (Labor Code section 6409.6(f))
Complaints regarding retaliation or failure to provide notices will be investigated by the Division of Labor Standards Enforcement. Notice violations may result in the issuance of citations and civil penalties. (Labor Code sec. 6409.6(l))
Please contact our office with questions regarding this Legal Update or any other legal matter.
The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.
© 2020 School and College Legal Services of California
All rights reserved. However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.
 As of 9/02/20, CDPH defines the “infectious period” for symptomatic persons as two days before symptom onset and 10 days after onset, and for asymptomatic persons, 10 days from the initial positive test date.
 Employee’s name, job title, date of injury or onset of illness (date of potential exposure), where the event occurred, description of injury or illness (potential exposure to COVID-19), most serious result for each employee, number of days employee was away from work or on the job transfer or restriction, type of “injury” – injury, skin disorder, respiratory condition, poisoning, hearing loss, other.
 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Workplace-Outbreak-Guidance.aspx. This is the reporting threshold as of September 18, 2020, and is subject to CDPH update at any time.