COVID-19 What Businesses Need to Know Update No. 24

COVID-19 – COMPLIANCE ALERT

CLUSTER REPORTING OBLIGATIONS FOR CALIFORNIA BUSINESSES

During recent weeks, state and local compliance and enforcement efforts related to COVID-19 precautions for businesses have increased across California.  Many county-level public health agencies have issued updated orders in connection with California employers’ COVID-19 reporting obligations.  Specifically, certain California counties, including San Diego, Los Angeles, Santa Clara, and Sonoma counties, now require employers to report COVID-19 clusters.  A “cluster” or “outbreak” is typically defined as three (3) or more cases of COVID-19 within the workplace during a fourteen (14) day period.  This cluster reporting obligation is used in tracing efforts intended to control the spread of COVID-19 in the workplace, and is not meant to be punitive to employers.

Although specific cluster reporting requirements vary from county to county, the following is a brief review of San Diego County employer cluster reporting requirements, to illustrate what is happening across California, followed by a summary of best reporting practices.

San Diego County COVID-19 Cluster Reporting Requirements

Effective July 30, 2020, San Diego County employers must take the following action if they become aware that an employee is diagnosed with COVID-19:

• Promptly notify the County Department of Public Health (call (888) 950-9905) that there is an employee diagnosed with COVID-19, along with the employee’s name, date of birth, and contact information.
• Cooperate with the County Department of Public Health’s COVID-19 response team to identify and provide contact information for any persons exposed by the employee at the workplace.
• When three or more cases are identified at the workplace within a span of 14 days, provide notice of the exposure to any employees, customers, or any other persons who may have been exposed to COVID-19 at the workplace. A strong recommendation is made that employers also provide such notice when at least one employee is diagnosed with COVID-19 in the workplace.

Once a workplace cluster is reported, a case manager is assigned to guide the employer’s response and to provide technical support, implement infection control practices, and provide site-specific control measures.

As part of its efforts to ramp up businesses’ compliance with required COVID-19 precautions, San Diego County also announced the creation of the Healthy Compliance Call Center to allow the public to report violations of local public health orders.

Best Practices for Reporting

As employers face increased scrutiny and concerns regarding the potential impact of local public health enforcement efforts on business operations, including COVID-19 employee reporting requirements, employers should consider the following best practices:

• Familiarize human resources staff with cluster-reporting requirements;
• Maintain an employee COVID-19 log to document confirmed and/or suspected COVID-19 cases, including all information required by local law, as applicable;
• Ensure reporting efforts do not interfere with an employee’s medical privacy rights and disability-related protections under state and federal law and maintain employee confidentiality to the greatest degree possible;
• Timely identify any close contacts during the exposure period and require them to self-quarantine;
  • Do not disclose the identity of the COVID-19 positive worker in an effort to identify close contacts.
  • Consider instituting a policy requiring COVID-19 positive employees to provide a list of other employees with whom they had close contact during the exposure period.
• Offer periodic employer-sponsored COVID-19 testing to all workers to minimize exposures and the likelihood of a workplace cluster.
  • If workers are at a high risk for exposure to COVID-19 due to frequent face-to-face interaction with members of the public and/or an inability to maintain physical distancing at work, require workers to be tested every 30 days.
    • If COVID-19 testing is required, employers must compensate employees for time spent testing and cover all testing costs to avoid wage and hour liability.

Employers should continue to monitor evolving state and local public health orders and comply with cluster reporting obligations.  Where applicable, prepare a cluster reporting protocol, including steps to minimize employee confidentiality violations.

Please do not hesitate to contact us for assistance with COVID-19 cluster reporting obligations and best practices, as well as communications with local public health agencies.