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  • New CDPH Guidance Clarifies, Contains Ambiguities for Reporting COVID-19 Outbreaks

    Last Friday, October 16, the California Department of Public Health (CDPH) slipped out two new guidance documents which employers of all sizes across the state need to take a look at. Most importantly, these documents include guidance on how employers should be reporting outbreaks to local public health agencies right now, which is very similar to the AB 685 requirements.

    As you may recall, AB 685 (Reyes) was a priority bill that, among other provisions, required employers to give notice to employees of potential COVID-19 exposure, as well as notifying local public health departments whenever an “outbreak” occurred. Aimed at providing employers with “guidance” and clearer definitions for AB 685’s requirements, these two new guidance documents will resolve some small headaches for employers but also raise new questions.

    First, the AB 685 Definitions guidance should bring some small relief, as it clarifies some lingering ambiguities that the business community and CalChamber had raised with the text of AB 685.  Notable among these, it:

    • Clarifies that an “outbreak” is three cases within two weeks among workers, which resolves an ambiguity about potential exposures caused by sick customers visiting a retail space.
    • Clarifies that a “lab confirmed test” must be a test for live virus, not antibodies, which both the business community and Senator Pan had pushed for.
    • Does not clarify the ambiguity in AB 685 among the three different definitions of who must receive notice when an exposure occurs.

    However, the second document is where you’ll want to pay more urgent attention. Employer Questions About AB 685, California’s New COVID-19 Law provides a general discussion of AB 685 and its loose parameters. Regarding when employers must report an “outbreak,” it states that employers are already required to report outbreaks (“3 or more cases … within a 2-week period”) pursuant to a third guidance document, which the CDPH amended the day after AB 685 was signed by the Governor but was not publicized at the timeThis means that, although AB 685 didn’t have an urgency clause, employers should be aware that this guidance document is potentially enforceable and should check their current reporting practices.

    As an aside, for those preparing to comply with AB 685 and drafting your notice forms, take note that the most recent version of the Governor’s COVID-19 Employer Playbook now includes draft language for notice to employees of COVID-19 exposure on page 21.

    Stepping back for a moment, the web of documents I just mentioned brings up another long-term business community concern with COVID-19: How to keep up? With the CDPH putting out updated guidance with little fanfare, and the Governor’s playbook not presently reflecting that guidance, employers have to check a number of websites just to keep up with state-level guidance, let alone the requirements of their local public health departments. When even government relations professionals and labor law attorneys struggle to keep up with which entities are releasing guidance and what they change — how are California’s small businesses supposed to keep up?

    Robert Moutrie, Policy Advocate, CalChamber

    CalChamber’s Coronavirus Resource page contains key COVID-19 updates; current information on new labor laws and ordinances; and links to popular COVID-19-related articles.

    Access additional COVID-19-related HRWatchdog blogs.

    Content courtesy of of HRCalifornia and the California Chamber of Commerce.