California companies mired in new rules for telling employees about coronavirus casesOctober 01, 2020SUSAN WOOD
THE NORTH BAY BUSINESS JOURNAL
September 29, 2020
With more than 200,000 American lives taken already, the six-month battle with COVID-19 may also morph into a war of words.
A new California law requires businesses report coronavirus cases to their employees. But North Bay law firm specialists say the new rules come with thoughtful intentions but convoluted details.
Assembly Bill 685 authored by Eloise Gomez Reyes, D-San Bernardino and signed by Gov. Gavin Newsom on Sept. 17 requires companies to tell employees within 24 hours when a worker tests positive. Failure to provide adequate notifications may result in a $10,000 fine.
The law goes into affect Jan. 1 and sunsets in two years.
“It is probably helpful from a peace-of-mind perspective. Employees can be sure that they have the information that they need (for) their own personal safety,” said Petaluma attorney Patrick O’Brien, whose own brother Robert O’Brien, the U.S. national security adviser, tested positive.
But the law itself may appear “likely redundant” to “most responsible businesses,” the law practice’s chief added. “My firm has notified every employee, when any of our employees have even shown any symptoms.”
He said no one in the firm has tested positive thus far.
Faced with cases in their workplaces, some companies have issued “gag” orders not allowing their employees to talk about positive COVID-19 cases, citing federal health privacy regulations.
Across the nation, some employees have filed complaints, as in the case of meatpacking plants in the Midwest. Workers at Amazon.com, McDonald’s and Target also allege they were told to keep quiet, Bloomberg News reported.
The argument over right and wrong workplace behavior has reached the highest level of government.
The U.S. Department of Labor says it continues to field and respond to complaints.
Consequently, California lawmakers took matters into their own hands.
What’s a ‘workplace outbreak’?
If there’s an outbreak in a California company, the reporting function must escalate to local public health departments. The California Department of Public Health defines a “workplace outbreak” outside of a health care or residential setting as “three or more laboratory-confirmed cases among employees in different households within a two-week period.”
If outbreaks occur in the workplace, California Occupational Safety and Health Administration has the authority to close down a company’s operations.
As it stands, safety hazards in the workplace fall under the California Occupational Safety and Health Act of 1973, which requires OSHA to determine when “a place of employment, machine, device, apparatus or equipment of any part thereof is in a dangerous condition, is not properly guarded or is dangerously placed so as to constitute an imminent hazard to employees,” the bill’s language reads.
With the incoming law, “Cal OSHA can exercise its authority at any place of employment where risk of exposure to COVID-19 constitutes an imminent hazard, and would remove employees from the risk of harm until the employer can effectively address the hazard,” according to the state Department of Industrial Relations.
Companies are expected to draft a plan that covers disinfecting their workplaces in the event of an outbreak.
Today’s threats go beyond heavy machinery
The bill has been supported and sponsored by the California Labor Federation, while the California Chamber of Commerce argued against it for exposing employers “to substantial fines and Cal OSHA enforcement,” according to the Assembly analysis. State chamber representatives failed to respond to inquiries as of press time.
The devil in the new law may be in its details.
“I don’t think there’s anybody interested in hiding this (information). It’s not a matter of an employer that doesn’t want employees to know,” said Lisa Ann Hilario, an employment law specialist with Spaulding, McCullough & Tansil in Santa Rosa. “It’s just complicated and incredibly challenging. There’s not a lot of guidance for employers.
Hilario’s phone has lit up since the bill made its way through the Legislature.
The outline of the law covers eight pages of single-spaced notes at 8-point font.
“People will have to go to an attorney or consultant for assistance,” she said.
What’s my obligation?
This question may be the primary catch phrase going into 2021.
“Imagine being on the other end of this notice,” Hilario said, referring to employees finding out they’ve been exposed to the virus.
What if a worker was in a setting in his or her leisure time and finds out someone who attended the outing claimed to test positive?
Up to this point, the law stipulates a case as either laboratory confirmed, positive test, death or order of isolation. It fails to recognize a verbal acknowledgment.
Hilario believes the law is too vague at this point to handle every possible scenario. Plus, so much guidance from agencies has changed, and conflicting information at numerous sites has made solutions to situations confusing.
“It’s not a matter of being against the law. When people oppose a law, it’s usually not about the intention. It’s usually about the details,” she said.
Susan Wood covers law, cannabis, production, as well as banking and finance. For 25 years, Susan has worked for a variety of publications including the North County Times in San Diego County, Tahoe Daily Tribune and Lake Tahoe News. She graduated from Fullerton College. Reach her at 530-545-8662 or firstname.lastname@example.org.
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