This post appeared in January 2022. It has been reviewed and is up to date.
In light of the current surge in COVID-19 cases, it is important that employers understand their obligations in the event that there is a COVID-19 outbreak at one of their workplaces.
This blog post is intended to provide an overview of the various statutory and regulatory obligations that employers have during an outbreak so that employers can discharge their legal duties and return their operations to normal as soon as possible.
Laws Implicated During a COVID-19 Outbreak
There are two laws that are implicated by workplace COVID-19 outbreaks: (1) Labor Code section 6409.6, which requires that the employer provide notice to the local health department in the event of an outbreak; and (2) the Cal/OSHA COVID-19 Emergency Temporary Standard (“ETS”), which imposes a number of regulatory requirements when there is an outbreak.
Defining “COVID-19 Outbreak”
The Labor Code and Cal/OSHA ETS use similar, but slightly different, definitions for the term “COVID-19 outbreak.” As discussed herein, the difference in the definitions may lead to the unusual or unexpected circumstance where there is an outbreak according to the Labor Code, but not under the Cal/OSHA ETS.
Statutory Definition of an Outbreak under the Labor Code is Broader
The Labor Code relies on the California Department of Public Health (“CDPH”) definition of COVID-19 outbreak. That definition provides that an outbreak means “[a]t least three COVID-19 cases among workers at the same worksite within a 14-day period.” The Labor Code defines “worksite” to mean “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” (Lab. Code § 6409.6(d)(7).) As a result of the use and definition on the term “worksite,” the Labor Code provided a definition of “COVID-19 outbreak” that is broader than the Cal/OSHA ETS definition.
Regulatory Definition of an Outbreak under the Cal/OSHA ETS is Narrower
The Cal/OSHA ETS defines the term COVID-19 outbreak to mean “three (3) or more employee COVID-19 cases within an exposed group … [who have] visited the workplace during their high-risk exposure period at any time during a 14-day period.” While the ETS defines the term “exposed group” as meaning “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period” (8 C.C.R. § 3205(b)(7)), it expressly excludes from inclusion work locations that a COVID-19 case momentarily passed through or that the individual visited for less than 15 minutes while using a face covering. As a result, the regulatory definition of an outbreak is more limited than that under the Labor Code.
The Cal/OSHA ETS definitions allow employers to potentially reduce the number of workplace outbreaks by subdividing their “worksites” into smaller “work locations, working areas, or common areas,” and using these specific locations, as opposed to the worksite generally, to determine when there is an outbreak. As a result, there may be circumstances that would constitute an outbreak under the Labor Code, but not under the Cal/OSHA ETS.
Given the different definitions of COVID-19 outbreaks under the Labor Code and Cal/OSHA, employers may want to consider how they will approach a workplace outbreak and whether they would treat an outbreak under the Labor Code as also constituting an outbreak under the Cal/OSHA ETS, despite the different definitions and more specific regulatory criteria.
Statutory Obligations under Labor Code Section 6409.6
As provided above, the principal statutory requirement under Labor Code section 6409.6 is to provide notice of a workplace COVID-19 outbreak to the local health department.
Under that section, upon learning of a COVID-19 outbreak at a worksite, the employer must, within 48 hours or one business day, whichever is later, notify the local public health agency of the following:
The employer must further notify the local health department of any subsequent COVID-19 cases at that worksite. (Lab. Code § 6409.6(b).)
In order to comply with these requirements, and hopefully in advance of an actual outbreak, employers should identify the appropriate contact at the local health department to receive the outbreak notice as well as the form, if any, required by the health department to report COVID-19 outbreaks. As always, employers should monitor COVID-19 cases in the workplace and be prepared to report an outbreak if, and when, there are three or more cases in the 14 day period.
Regulatory Obligations under Cal/OSHA ETS
In addition to the statutory notice obligations, the Cal/OSHA ETS imposes regulatory requirements on employers in the event of a workplace outbreak. (8 C.C.R. § 3205.1.).
COVID-19 Testing
Where there is an outbreak, the regulations require that employers make COVID-19 testing available at no cost to employees in the exposed group during such employees’ paid time. (8 C.C.R. § 3205.1(b).)
Employers must offer this testing immediately after becoming aware of the outbreak and then again one week later. Furthermore, employers must continue to offer such testing to employees in the exposed group until no new COVID-19 cases are detected in the exposed group for 14 days. (8 C.C.R. § 3205.1(b)(2)(B).)
This requirement does not apply to (1) employees who were not present during the 14 day period, (2) symptomless and fully vaccinated employees who were fully vaccinated before the outbreak, and (3) COVID-19 cases who returned to work (for 90 days after their diagnosis/start of symptoms).
Face Coverings and Social Distancing
In the event of an outbreak, employers must also ensure that employees in the exposed group wear face coverings and observe physical distancing. Specifically, employers must ensure the following: (1) employees in the exposed group wear face coverings when indoors, or when outdoors and less than six feet from another person, (2) unvaccinated employees in the exposed group are given notice of their right to request a respirator for their use at work, and (3) the employer implements physical distancing requirements in the workplace and evaluates the need for solid partitions between work stations. (8 C.C.R. § 3205.1(d).)
Employers should document their compliance with each of these requirements.
Investigation and Changes
Finally, employers must immediately perform a review of their COVID-19 policies, procedures, and controls. If such review indicates that changes are needed to prevent the further transmission of the virus that causes COVID-19 in the workplace, such remedial measures must be undertaken. (8 C.C.R. § 3205.1(e).) Employers must document this review and any remedial actions and update it every 30 days until the outbreak has concluded.
In sum, upon the identification of an outbreak at the workplace, employers must immediately notify the local health department and transmit the required information in a timely manner. The employer must then offer COVID-19 testing at no cost to the employees in the exposed group, during such employees’ paid time. This testing should continue to be offered until no new COVID-19 cases in the exposed group are detected. Finally, in addition to reviewing relevant COVID-19 policies and procedures, and enacting any needed changes, employers must also ensure that employees in the exposed group wear face coverings and engage in physical distancing.