California Assembly Bill (AB) 2693, signed into law on September 29, 2022, made changes to COVID-19 notification requirements by amending California Labor Code section 6409.6 (Duties of employer when notified of potential exposure to COVID-19) and extending its provisions until January 1, 2024. The main modification gives employers the option to post a notice of potential COVID-19 exposure at the worksite (and on existing employee portals) instead of providing written notice. That said, employers subject to the Cal/OSHA Emergency Temporary Standard (ETS) still appear to be required to give written notice of potential exposure to employees, independent contractors, and other employers regardless of the new section 6409.6 posting option. In short, AB 2693 offers some relief to notification burdens, but also adds potential confusion regarding when notifications are required.

Key changes to Labor Code section 6409.6 include:

  • Notice to the local public health agency is no longer required in the event of an outbreak, but Cal/OSHA still requires disclosure pursuant to its COVID-19 Prevention Program Regulation.
  • The California Department of Public Health (CDPH) is no longer required to make workplace industry information regarding COVID-19 outbreaks and cases received from local public health departments available on its website.
  • The definition of "close contact" was harmonized with the CDPH and Cal/OSHA definition.
  • Employers may either provide a written notification or a worksite posting of potential COVID-19 exposure. If using the posting option, the employer must, within one business day of the notice of potential exposure, prominently display a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted (including on employee portals) stating:
    • 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.
    • The location of the exposures, including the department, floor, building, or other area, but the location need not be so specific as to allow individual workers to be identified.
    • Contact information for employees to receive 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, as well as an employee's anti-retaliation and anti-discrimination protections.
    • Contact information for employees to receive the cleaning and disinfection plan that the employer is implementing per CDC guidelines and under the Cal/OSHA COVID-19 Emergency Temporary Standards COVID-19 prevention program.
    • The notice must remain posted for not less than 15 calendar days.
    • The notice must be in English and the language understood by the majority of employees.
    • The employer must keep a log of all the dates the notice required by this section was posted at each of the employer's worksites.
  • If the employer uses the written notice option:
    • The notice must be provided to all employees, and the employers of subcontracted employees, who were at the same worksite premises as the qualifying individual confirmed case of COVID-19 within the infectious period, stating that they may have been exposed to COVID-19. The notice must be provided in a manner the employer normally uses to communicate employment-related information.
    • Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
    • Notably, the written notice does not appear to require the detailed information of the aforementioned posting. Nonetheless, the conservative approach would be to include the same information in the written notice that is required in the posting option.

What does this mean for employers?

Employers should understand that while Labor Code section 6409.6 now allows for worksite posting of potential exposure notices, most employers are also still subject to the written notice requirements of the Cal/OSHA ETS.

The ETS still imposes obligations to, within one business day of the time the employer knew or should have known about a COVID-19 case at the worksite, provide written notice (including the cleaning and disinfection plan) to all employees, independent contractors, and other employers on the premises at the same worksite as a COVID-19 case during the infectious period.

The ETS likely still requires the employer (1) provide written notice of potential exposure to the exclusive representative of COVID-19 cases and employees who had close contact (the notice must include the same information that would be required in an incident reported on a Cal/OSHA Form 300 log), and (2) notify all employees, employers of subcontracted employees, and exclusive representatives of the cleaning and disinfection plan. These last two ETS requirements reference the former Labor Code section 6409.6, which are now out of date. This also complicates understanding what is required. This frustration was evident at the recent Cal/OSHA Standards Board public hearing on a proposed non-emergency COVID-19 standard.

Given the lack of clarity, and apparent contradictions between the ETS and the new Labor Code section 6409.6, the most conservative action, in addition to following section 6409.6, may be to comply with the intent of the ETS and continue to provide all written notices.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.