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COVID-19 Reporting and Recording: Preparing for AB 685
Amanda M. [email protected]
Diane M. O’[email protected]
Cal/OSHA Citations
Cal/OSHA reported that, as of September 4, 2020, it has cited 11 employers for not protecting their workers.
According to Cal/OSHA, proposed penalties ranging from $2,025 to $51,190, See https://www.businessinsurance.com/article/20200904/NEWS08/912336484/CalOSHA-cites-employers-for-COVID-19-coronavirus-pandemic-violations#
Cal/OSHA Citations
Bay Area: September 22 News Release
• “Cal/OSHA has cited six Bay Area employers including hospitals, skilled nursing facilities and a police department for failing to protect their employees from COVID-19. The employers listed below were cited for various health and safety violations including some classified as serious, with proposed penalties ranging from $2,060 to $32,000.”
• Workers in health care and public safety are at a higher risk of exposure to COVID-19 and employers must put in place measures to protect these essential personnel,” said Cal/OSHA Chief Doug Parker.”
See, https://www.dir.ca.gov/DIRNews/2020/2020-80.html
Cal/OSHA citations
• Two grocery workers at a Los Angeles Ralphs Supermarkets died from COVID-19 but Ralphs waited one week before notifying Cal/OSHA. This, along with other violations totaled $104,380 in proposed penalties. See, https://www.sacbee.com/news/california/article246180375.html
• Cal/OSHA issued Hollywood Presbyterian Medical Center a $57,120 fine after a nurse died of COVID-19. The nurse died 14 days after entering a patient’s room who had COVID-19. The nurse was not using personnel protective equipment.
• The Hospital is appealing and disputed the claims.
Cal/OSHA Citations
• Cal/OSHA investigators cited the hospital for not reporting the death to OSHA, to the local health department and not notifying staff she of their potential exposure.
• Cal/OSHA also noted: “improper reuse of N95 masks; not fit-testing the masks for staff to make sure they worked properly; not having enough disinfectant supplies for staff to clean high-touch surfaces; not having a complete plan for how to protect staff from aerosolized transmission of viruses and asking staff to hang their gowns on hooks outside patient rooms to be reused, which increased the possibility of contaminating the gowns with germs.” See,
• https://www.latimes.com/california/story/2020-10-02/hollywood-hospital-fined-after-nurse-dies-of-covid-19
Current Cal/OSHA COVID-19 Recordkeeping Requirements
• To be recordable, an illness must be work-related and result in one of the following:
• death, • days away from work (time spent in quarantine is not considered “days away
from work.”)• restricted work or job transfer, • medical treatment beyond first aid, loss consciousness, • or significant illness or injury as diagnosed by a healthcare professional.
• When is COVID-19 “work related?”• A positive test is not required to trigger recordkeeping requirements.
Current Cal/OSHA COVID-19 Reporting Requirements• In California, employers must report to Cal/OSHA of any COVID-19 cases that result in an in-
patient hospitalization or death of an employee if the illness either occurred in connection with work (i.e., the illness was caused by an exposure at work), or occurred in the place of employment (even if it is clearly not work-related).
• Must be reported to Cal/OSHA within 8 hours after the employer knows or with diligent inquiry should have known of the serious illness.
• Reportable illnesses are not limited to instances when the employee starts showing symptoms while at work. Serious illnesses include illnesses contracted “in connection with any employment,” which can include those contracted in connection with work but with symptoms that begin to appear outside of work.
• The updated Cal/OSHA guidance notes that reporting a serious illness is not an admission that the illness is work-related, nor is it an admission of responsibility. Accordingly, Employers should err on the side of reporting when in doubt.
AB 685 - Overview• Orders Prohibiting Use (OPU): Cal/OSHA can issue an OPU to shut down an
entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19.
• Citations for serious violations: Cal/OSHA can issue citations for serious violations related to COVID-19 without giving employers 15-day notice before issuance.
• Notice:o Employers are now required to notify all employees at a worksite of potential
exposures, COVID-19-related benefits and protections, and disinfection and safety measures that will be taken at the worksite in response to the potential exposure.
o Employers are now required to notify local public health agencies of all workplace outbreaks, which are defined as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period.
AB 685 - Notice Requirements
• The new law requires an employer to provide certain notices once the employer has “notice of potential exposure” to COVID-19.
• Notices with varying content must be provided to potentially exposed employees, employee representatives (i.e., unions), all employees at a worksite, CDPH
• Notice requirement triggered when “employer or employer’s representative” receive notice of a “potential exposure.”
AB 685 Notices to Employees, Employee Representatives, and Employers of Subcontracted Employees• Provide written notice to all employees and employers of subcontracted employees, who were on
the premises at the same “worksite” as the “qualifying individual” within the “infectious period.” • In addition to employees and employers of subcontracted employees, provide notice to employee
representative (unions).• Written notice must be provided within 1 business day of the employer’s notice of potential
exposure.• What is a “worksite?”• When is the “infectious period?”• Maintain records of notices given for at least three years.• What must be in the notice?
• Employees who may have been exposed• Employee Representatives• Employers of Subcontracted Employees• All Employees
AB 685 Notice to CDPH
• Notice must be provided within 48 hours of when employer receives notice of COVID-19 cases that meet CDPH definition of “outbreak.”
• What must notice contain?• names, • number, • occupation,• worksite of employees who meet the definition of a qualifying individual• NAICS code of worksite where qualifying individuals work
• Will CALA members have to comply if they are already reporting?
AB 685 - OPUs• An OPU allows Cal/OSHA to prohibit entry into a place of employment or
prohibiting the use of something in a place of employment which constitutes an imminent hazard.
COVID-19 Serious Citations Process Under AB 685
• Cal/OSHA can now more quickly issue citations for serious violations related to COVID-19.
• AB 685 removed the possibility of a negative inference being drawn if Cal/OSHA does not send a pre-citation notice to the employer at least 15 days prior to issuing a citation for a serious violation related to COVID-19.
Health and Safety PoliciesAll California employers, regardless of size, must develop and maintain an effective, written Injury and Illness Prevention Program (“IIPP”) addressing
1. workplace hazards; 2. a means of communicating hazards to employees;3. ensuring employee compliance with the IIPP;4. investigation of injuries and illnesses; and5. employee training.
Cal/OSHA has stated that employers must generally consider COVID-19 a workplace hazard such that it should be acknowledged in an employer’s IIPP. Notwithstanding workplace and industry variations, Cal/OSHA’s guidance identifies an extensive list of specific infection prevention measures that employers should include in their written IIPP.
Cal/OSHA Enforcement• Violating Cal/OSHA standards can result in significant penalties and fines.• Thus far, enforcement by Cal/OSHA has been driven by employee complaints • Cal/OSHA has not issued any guidance modifying its standard inspection or
enforcement procedures based on COVID-19.
Questions?
