CALIFORNIA ENACTS MANDATORY COVID-19 NOTICE AND REPORTING REQUIREMENTS

Ki Lin Tay, Esq.and Jaimee K. Wellerstein, Esq., Bradley & Gmelich, CALSAGA Legal Advisor

 

On September 17, 2020, Governor Gavin Newsom signed another COVID-19 related bill into law – Assembly Bill 685. This new bill imposes strict notice and reporting requirements upon California employers, in both the public and private sector, and expands the California Division of Occupational Safety and Health’s enforcement authority to ensure safe workplace operations.

 

Assembly Bill (“AB”) 685 – which will go into effect January 1, 2021 – sets out several categories of employees to whom notice must be provided, and establishes detailed written notice requirements, which must be quickly prepared and distributed to employees within time limits set by the bill. The mandates set out by the new law are certainly not straightforward, so California employers will need to pay close attention to the complexities of AB 685, and should start the compliance process now to ensure they meet the requirements of this new law come the new year.

 

New COVID-19 Notice and Reporting Requirements

AB 685 requires all California employers, public or private, to provide “notice of a potential exposure” to COVID-19 from a “qualifying individual” within one day of being informed of a potential exposure at the “worksite.” These terms are specifically defined in the bill, as follows.

 

When Does An Employer Receive “Notice of a Potential Exposure”?

Under the new law, notice of a potential exposure is defined to include:

 

a) Notification from a public health official or licensed medical provider

that an employee was exposed to a “qualifying individual” at the

worksite;

b) Notification from an employee or the employee’s emergency contact that

the employee is a “qualifying individual”;

c) Notification through the testing protocol of the employer that the

employee is a “qualifying individual”; or

d) Notification from a subcontracted employer that a “qualifying individual”

was on the employer’s worksite.

 

Who is a “Qualifying Individual”?

A “qualifying individual” is any person that has: (1) a laboratory-confirmed case of COVID-19; (2) a positive COVID-19 diagnosis from a licensed health care provider; (3) a COVID-19 related order to isolate from a public health official; or (4) has died from COVID-19.

 

It is important to note that if an employee provides informal notice that they may have been exposed to COVID-19 – that is, where one of the above four “qualifying” scenarios has not occurred – that employee is not a “qualifying individual” as defined by AB 685. However, it is always best practice to remove any employees that suspect that they have been exposed to COVID-19 in order to maintain the health and safety of the workplace, unless and until testing or diagnosis can be obtained to confirm they are not infected with the virus.

 

What is Considered the “Worksite”?

Pursuant to AB 685, the “worksite” is defined as “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period”. The term “worksite” does not include “buildings, floors, or other locations of the employer that a qualified individual did not enter”. Employers need only provide notice to workers that were at the same worksite as the qualified individual.

 

Who Must the Employer Notify?

The new bill sets out three categories of employees to whom notice must be provided. The employer must provide written notice to: (1) all employees; (2) the employee’s exclusive representative, where applicable; and (3) the employers of any subcontracted employees “who were on the premises at the same worksite as a qualifying individual” within the “infectious period” (as defined by the State Department of Public Health).

 

Furthermore, if the level of exposure meets the definition of a COVID-19 “outbreak,” as defined by the State Department of Public Health, the employer must provide notice to the local public health agency within 48 hours. This notice must disclose the names, number, occupation, and worksite of the employees who have contracted COVID-19. The employer will also have an ongoing obligation to update the local public health department regarding any further confirmed cases of COVID-19.

 

How and When Must the Notice be Provided?

Written notice must be given within one business day after the employer is informed that there has been a potential exposure to COVID-19 at the worksite. This notice must be provided to employees in the same manner the employer “normally uses to communicate employment-related information”, as long as that method of communication will reach the employees within one business day. These methods of communication may include personal service, overnight mail, electronic mail, or text message, provided it can be reasonably anticipated that the employee will receive the communication within one business day. This notice must be provided in English as well as any other language understood by the majority of the employees at issue.

In addition, “exclusive representatives” of the employees, such as union representatives, must receive notice which contains the same information required to be indicated in a California Division of Occupational Safety and Health (“Cal/OSHA”) Form 300 incident report, to the extent that information is known to the employer.

 

What Information Must the Notice Contain?

The notice to employees must contain the following information:

 

a) Notification from a public health official or licensed medical provider

that an employee was exposed to a “qualifying individual” at the

worksite;

b) Notification from an employee or the employee’s emergency contact that

the employee is a “qualifying individual”;

c) Notification through the testing protocol of the employer that the

employee is a “qualifying individual”; or

d) Notification from a subcontracted employer that a “qualifying individual”

was on the employer’s worksite.

 

In terms of record-keeping requirements, employers must retain records of any written notices issued for a period of three years.

 

Are Any Employers Exempt From These Provisions?

Yes – the notice requirements do not apply to certain health facilities as defined in Section 1250 of the Health and Safety Code, nor do they apply to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are exposed to or have tested positive for COVID-19, unless the qualifying individual is an employee at the same worksite.

 

Cal/OSHA’s Expanded Enforcement Authority

AB 685 expands Cal/OSHA’s authority to shut down places of employment by prohibiting operations and entry onto the worksite if that worksite poses any risk of exposure or “imminent hazard to employees” related to COVID-19. In the event that this occurs, Cal/OSHA will provide the employer with a separate notice that must be posted in a conspicuous location.

Employer Takeaway:

Given the complexities and detailed requirements of this new bill, as well as the short window of time permitted to provide the required notices, California employers should immediately begin implementing the practices and procedures necessary to ensure compliance with these new laws in time for the new year.

 

For further information or assistance with preparing for compliance with these new requirements, contact your attorneys at Bradley & Gmelich LLP. We are here to help you make the compliance process as painless as possible!

 

Ki Lin Tay is a Senior Associate Attorney at Bradley & Gmelich LLP. Ki Lin focuses her practice on representing employers and providing strategic advice and counsel in all aspects of employment law and workplace matters, including employment law compliance, employment litigation, workplace investigations, internal audits, wrongful termination, discrimination, retaliation, harassment, misclassification, wage and hour, and general contract matters.

As a qualified attorney in both the United States and Canada, Ki Lin’s experience representing and defending employers in her legal practice is broad and international in scope. Prior to joining the Firm, Ki Lin served as in-house company Counsel and Head of Legal for a national human resources compliance company, arming her with a unique understanding of the dynamics from both sides of the table. Ki Lin specializes in working proactively with employers to develop business and legal strategies that mitigate the risk of employment disputes and maintain compliance with the complex and dynamic landscape of employment law. She regularly provides employers with the mechanisms needed to reduce potential liability and exposure, including employment law counseling, workplace training programs, company policy and handbooks, and all other employment-related contracts and documents used to manage legal risk. ktay@bglawyers.com

 

Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.

Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies.

Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale-Hubbell, the highest peer rating available. jwellerstein@bglawyers.com

COVID-19 AND EMERGING SECURITY RISKS

Tory Brownyard, Brownyard Group 

Earlier this year, I wrote about how a hardening market for security insurance was going to have a pronounced effect on the industry. What I did not — and could not — anticipate was the impact of a pandemic, global civil rights protests and inner city looting across the country.

It has been heartening to watch how the security industry has responded. Security firms did not hesitate to change their policies and procedures to protect officers. If they had hesitated, we may have seen more guards fall ill with COVID-19. Yet many still have questions about what this all means for them, particularly when it comes to insurance and liability. Let’s review the issues.

 

COVID-19

As was the case for many industries, early stages of the pandemic brought much uncertainty to security. It was unclear where officers would be needed most, and many expected that firms may struggle as schools, shopping centers and public spaces were shut down. Security companies acted fast to protect their staff and figure out what their clients needed most in these difficult timeswhich is why the industry hasn’t been hit as hard as might be expected. COVID-19 has highlighted a greater need for security officers, as well as their versatility.

While we saw an expected decline in business in some sectors and regions, we have also seen many security firms adapt to changing business needs and even reinvent themselves in response to COVID-19. This has meant taking on patrol duties, hospital work and alarm response jobs. As businesses have started reopening, security officers have been asked to handle temperature screening.

These temperature screenings raise many questions about risk and insurance. This may seem outside the bounds of typical post orders, yet officers who protect office buildings and other large facilities have been conducting these temperature checks. In these instances, insurance protection could be available under incidental medical malpractice coverage. Still, it is important for security firms to take measures to ensure their clients understand that temperature readings do not guarantee tested individuals don’t have COVID-19.

To limit liability, other firms have responded by contracting medical professionals to conduct temperature screenings. In this case, incidental medical malpractice coverage no longer applies as it is intended to cover security workers, not contracted medical professionals. For medical contractors, security firms would want to consider acquiring a separate medical malpractice insurance policy.

Security officers have also been asked to add sanitizing and disinfecting to their list of duties. Since the intent of security insurance coverage is usually only for security work, these tasks likely fall outside the risks insured by a security firm’s policy. This is a situation where checking in with a trusted insurance brokers is a good idea. Sanitation services may need to be classified as janitorial services or something similar, which may necessitate a separate insurance policy. Otherwise, any claims arising from sanitizing and disinfecting may not be covered.

Beyond additional responsibilities, the security industry has also had to deal with the virus itself. What happens if an officer contracts COVID-19 on the line of duty? In some instances, contracting a disease in the line of duty may be covered under workers’ compensation policies. Any claim would have to be followed by a thorough investigation to find out whether the contracting of the virus was work-related. If it is determined, that the claim is compensable, then benefits may include coverage for medical bills and indemnity pay for those who have lost time from their job. As every case is different, it is always a good idea to talk it through with your broker or insurer to make sure you have all the facts.

How the protests have impacted security

Nationwide, there have been riots and protests regarding the police force in recent weeks. As noted in news reports, police in a few areas of the country did not respond to calls in late June. This is clearly a conundrum for security officers with post orders to observe and report. For example, if a security officer works at an apartment complex that deals with intruders who damage the lobby, typically they would alert the police. Now, they may be forced to choose between enduring daily intrusions and ignoring the risk to life and property or taking on the risks of physical intervention.

Consequently, we’ve received many calls in recent weeks asking if officers are covered to act in these circumstances. Since they cannot just call the police any longer, what are the potential liabilities? In this situation, the answer likely comes down to their post orders. If the post orders clearly state the responsibility of the officer is to just observe and report, then they take on liability by acting further, even in the event police do not respond. Plus, officers typically tasked with observing may not have the training to de-escalate physical confrontations — putting the officers and others at risk.

The other issue that has emerged for security officers in recent weeks has been the actual protests. Some guard firms have been asked to step in and help secure businesses in areas affected by looting. With this significant exposure to crowds and potential acts of violence, this is a risk to be carefully weighed.

Over the past two decades, the security industry has made a dramatic shift towards careful risk management. The industry is safer than ever — and well equipped to respond to our current realities. It still helps for companies to maintain an open dialogue with their insurer to ensure any and all additions to their services are covered in their policy, particularly as responsibilities outside their normal comfort zone become more relevant in the industry.

 

Tory Brownyard, CPCU, is President of Brownyard Group (www.brownyard.com), an insurance program administrator with specialty programs for select industry groups. In addition to his responsibilities as President, he currently spearheads the Brownguard security guard insurance program. Tory is a highly-regarded subject matter expert in the field of Security Insurance and has contributed to industry publications such as Security Magazine and has been featured regularly in leading insurance publications. He can be contacted at TBrownyard@brownyard.com.