California Assembly Bill (AB) 2693, signed into law on September 29, 2022 and effective January 1, 2023, 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 will give 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.

Key changes to Labor Code section 6409.6 include:

• Notice to the local public health agency will no longer be required in the event of an outbreak. This means that the requirement for employers to report COVID cases to the health department as required by 6409.6 will be eliminated from Cal/OSHA’s ETS.
• The California Department of Public Health (CDPH) will no longer be 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 will allow for worksite posting of potential exposure notices, most employers may also be subject to potential written notice requirements of the proposed permanent COVID-19 regulations.

The proposed permanent COVID-19 regulations appear to require written notice and the regulations are not yet harmonized with the amended Labor Code section 6409.6. This may complicate understanding what may be required. This frustration was evident at the recent Cal/OSHA Standards Board public hearing on a proposed non-emergency COVID-19 standard.

Employers should closely monitor the development of the proposed permanent COVID-19 regulations, particularly notification requirements.