Modified Reporting Requirements for COVID-19 Exposure

CATEGORY: Special Bulletins
CLIENT TYPE: Nonprofit, Public Education, Public Employers, Public Safety
PUBLICATION: LCW Special Bulletin
DATE: Oct 15, 2021

On October 6, 2021, Governor Newsom signed into law Assembly Bill (AB) 654, which amends Labor Code section 6409.6 and modifies employer obligations related to reporting workplace COVID-19 exposures and outbreaks.[1] The new law takes effect immediately and will remain in effect until January 1, 2023.[2]

The purpose of this bulletin is to describe the statutory amendments to Labor Code section 6409.6, and the modified reporting obligations with which employer must now comply.

  1. Narrows the Definition of “Worksite” for Reporting Purposes

Employers have an existing obligation to report COVID-19 exposures at the “worksite” to all employees at that site[3] and to each of the employee organizations, if any, that represent such employees[4] as well as outbreaks[5] at the “worksite” to the local health department.[6]

AB 654 significantly narrows the definition of “worksite” for reporting purposes.

Under prior law, “worksite” was broadly defined to include “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.”[7] This definition did not account for large worksites where many employees could work simultaneously without having direct or indirect exposure to one another.

The new definition for “worksite” excludes the following locations from the definition: (1) buildings, floors, or other locations of the employer that a qualified individual did not enter; (2) locations where the worker worked by themselves without exposure to other employees: or (3) to a worker’s personal residence or alternative work location chosen by the worker when working remotely.[8] The first exclusion is particularly important to employers because now employers only must report COVID-19 exposures in areas where employees actually work and where there is potential for exposure.

As a result of this amendment, employers may send fewer, but more targeted, notices to employees in the event of a workplace exposure. Specifically, an employer will need to determine which employees were in the specific “worksite,” and send those employees notices as opposed to sending the notices to all employees in the building. Employers will also have to send fewer “outbreak” notices to the local health department because there is a reduced likelihood that there will be three (3) COVID-19 cases in the same “worksite” under the revised and more limited definition.

  1. Employers That Are Exempt From Reporting Requirements

The second significant change under AB 654 also benefits employers by expanding the number of employers that are exempt from the statutory reporting requirements entirely.

Under prior law, Labor Code section 6409.6 “apply[ied] to both private and public employers, except that subdivision (b) shall not apply to a ‘health facility.’”[9] The scope of the prior law covered many other facilities that provide health care services, including those with frequent COVID-19 cases, exposures, and outbreaks that required reporting.

Under the revised law, Labor Code section 6409.6 now enumerates and exempts 16 other types of facilities where health care is provided, including, but not limited to, community clinics, adult day health centers, community care facilities, child day care facilities, and others.[10]

For employers that provide health care services in facilities other than “health facilities,” the expanded exemptions eliminate reporting obligations, and will reduce the significant administrative burden associated with reporting exposures to employees and outbreaks to the local health department.

Given these changes, employers should review their existing policies and procedures for reporting COVID-19 exposures and outbreaks in the workplace and revise their practices accordingly in order to comply with new reporting obligations.

If you have questions about AB 654 and how the changes described herein may affect your operations, LCW attorneys are available to answer your questions.

[1] Assembly Bill No. 654, available at: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB654. (Last visited on October 14, 2021.)

[2] Labor Code § 6409.6 subd. (m).

[3] Labor Code § 6409.6 subd. (a)(1).

[4] Labor Code § 6409.6 subd. (a)(2).

[5] The California Department of Public Health (CDPH) defines “outbreak” to mean “at least three probable or confirmed COVID-19 cases within a 14-day period in people who are epidemiologically-linked in the setting, are from different households, and are not identified as close contacts‡ of each other in any other case investigation.” (See CDPH “Non-Healthcare Congregate Facilities COVID-19 Outbreak Definitions and Reporting Guidance for Local Health Departments,” October 13, 2020, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/OutbreakDefinitionandReportingGuidance.aspx (Uploaded on October 13, 2020.)

[6] Labor Code § 6409.6 subd. (b).

[7] See AB 685, Labor Code, § 6409.6 subd. (d)(5). AB 685, available at: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB685. (Last visited on October 14, 2021.)

[8] Labor Code, § 6409.6 subd. (d)(5)

[9] See AB 685, Labor Code, § 6409.6 subd. (h), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB685. (Last visited on October 14, 2021.)

[10] Labor Code, § 6409.6 subd. (h)(1)-(17) provides exemptions to each of the following: (1) A “health facility;” (2) A “community clinic;” (3) An intermittent clinic exempt from licensure; (4) A tribal clinic; (5) An outpatient setting conducted, maintained, or operated by a federally recognized “Indian tribe,” “tribal organization,” or “urban Indian organization;” (6) A “rural health clinic;” (7) A “federally qualified health center;” (8) A “chronic dialysis clinic;” (9) An employer that provides health care services; (10) An “adult day health center”; (11) a “home health agency;” (12) A “pediatric day health and respite care facility;”; (13) a “hospice;” (14) a community care facility; (15) A residential care facility for persons with chronic life-threatening illness; (16) A residential care facility for the elderly; (17) A child day care facility.

This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice. 

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