Is Your Employer Required to Tell You When a Co-Worker Tests Positive for COVID-19? A New Law Says YesJanuary 12, 2021
COVID-19 has brought about many changes to California laws. With more than 1.66 million cases and over 21,400 deaths, the virus hasn’t eased its grip. To protect Californians, new laws have been drafted and enacted. One taking effect in January is meant to help inform the majority of California’s workers, and employers need to get ready to share information on positive cases in the workplace.
So far, the pandemic has led to California COVID-19 Supplemental Paid Sick Leave for workers who had to stay home and self-isolate. It brought Pandemic Unemployment Assistance into play for people who lost a job or found their hours cut due to COVID-19. A new law goes into effect on January 1st. It’s one that requires employers to alert certain workers when co-workers test positive for the virus.
Assembly Bill 685 was approved by Governor Newsom on September 17, 2020. The bill expands upon the protections granted to qualifying workers in terms of health and safety in the workplace. OSHA requires both private and public companies to alert workers to hazards and dangerous conditions in the workplace. Violations of these rules can lead to fines. AB 658 adds COVID-19 as a hazard or dangerous condition. Qualifying workers are now required to be told if someone in their area or department has the virus.
Here’s What Changes With AB 685
Until now, if a worker in a company tested positive for coronavirus, no one had to know. If a worker wanted to share the positive test, they could, but there were no requirements. Starting January 1st, companies have one business day to alert workers and subcontractors who may have been in contact with the infected employee or subcontractor. Cleaning crews must also be alerted.
At no point can the company say who tested positive, but they need to notify employees so that they can get tested and self-isolate if needed. For three years from the date of the notice, employers also must keep records of when/who was told. If employers do not follow this new law, they can face civil penalties.
If three or employees, subcontractors, or associates at your workplace come down with COVID-19 in 14 days, the employer must alert the local public health agency within 48 hours. The results of COVID-19 tests need to be reported to the state as long as the business is not a health facility. If the business is a hospital, medical practice, or other health facilities, it’s exempt from this part of the new law. California’s Department of Public Health will report facts about outbreaks on the site so that the public is aware of them.
How are you going to be alerted to a positive case of COVID-19? Employers must provide written notice to any worker who was on the same worksite during the period the person with the virus would have been contagious. How long is the infectious period? It extends from 2 days prior to the appearance of symptoms. The contagious period ends 10 days after the first symptoms, plus a full 24 hours without a fever, plus other symptoms have started to go away. For workers who do not have symptoms, it’s 2 days from the positive test to 10 days after the positive test.
The written notice will be sent the way most written notices are sent, which might be a letter handed to each employee, a text message, or an email. For subcontractors, the worker’s employer or representative should also be notified.
The notification must include information on COVID-19 benefits that are available to the workers per local, state, and federal laws. There also needs to be information available that covers your employer’s safety plan and cleaning/disinfection that is taking place. Make sure you know if you should be wearing a mask and when it’s okay to take it off. Know where to wash your hands or apply hand sanitizer. Ask who is responsible for cleaning your machine, keyboard, or other office items that are touched regularly.
Before the infected worker returns to work, it’s up to an employer’s discretion whether the worker should provide a negative test. The ADA allows it if the returning employee would be a “direct threat” to other workers, customers, etc. Effective March 27, 2020, the ADA stated employers could request an employee to have his/her temperature checked or to answer questions regarding COVID-19. If that employee refused, the worker could be refused entry to work until such answers and temperature checks are allowed.
What Cannot Happen Under This New Law
Those are the new laws, but what about the things that won’t happen? What rules apply if you’re infected with COVID-19 and need to self-quarantine for a couple of weeks or more. Most importantly, you cannot be denied time off. Laws allow you to take time off to self-isolate. You cannot lose your job if you have COVID-19 and take two weeks off. Do not let your employer tell you otherwise.
The new law does not apply to employees who regularly test or treat people with COVID-19, mainly those in a medical field. If someone works as a nurse or doctor in an ICU ward treating coronavirus patients, other workers in that department already know the risks and wouldn’t need to be told.
Employees cannot name the infected person. It may be easy for some workers to figure out who it is based on absences from the workplace. Make sure everyone knows that medical records are private and protected by HIPAA and the ADA. It’s important to maintain as much privacy as possible when it comes to the virus. If you learn your boss told those who work in your department that you had COVID-19 and did not give permission for your boss to do so, that’s a violation of the new law. You are entitled to your privacy.
If you contract COVID-19, your co-workers, bosses, and others cannot treat you in a way that makes you feel uncomfortable. Once you return, it’s business as usual. You may need to provide a negative test when you return to work, but you cannot lose your job or be treated differently because you had the virus. With AB 685, workers who alert their management that they’ve tested positive for COVID-19 cannot be penalized or retaliated against.
Employers should have strict policies in place to prevent retaliatory behavior between workers. If you have been treated unfairly after receiving positive test results, file a complaint with the Division of Labor Standards Enforcement. It’s helpful and often more comforting to talk to an attorney who specializes in employment law to receive help. If you do file a report, you should not face any retaliation. If someone retaliates against you, that’s illegal.
Do all the changing employment laws leave you feeling uncertain? What if you’re not sure you have a valid complaint against your employer for violating your rights in terms of COVID-19 reporting? What do you do if your boss denies you the personal time you need in order to self-quarantine or care for someone with the virus? Call an expert in employment law. Shegerian Conniff offers free consultations and will help you understand your rights and responsibilities. Give us a call.