As most states continue to move away from COVID-19 requirements, California has recently seen two new updates that will dramatically affect current and future employer COVID-19-related obligations.
CDPH issues new order expanding the definition of close contacts under the current Cal/OSHA COVID-19 ETS
The current Cal/OSHA COVID-19 emergency temporary standard (ETS)—8 CCR 3205, et seq. definitions section states:
- “Close contact” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the infectious period defined by this section, regardless of the use of face coverings, unless close contact is defined by regulation or order of the CDPH. If so, the CDPH definition shall apply.
- “Infectious period” means the following time period, unless otherwise defined by CDPH regulation or order, in which case the CDPH definition shall apply:
- (1)(A) For COVID-19 cases who develop COVID-19 symptoms, from two days before they first develop symptoms until all of the following are true: it has been 10 days since symptoms first appeared; 24 hours have passed with no fever, without the use of fever-reducing medications; and symptoms have improved.
- (2)(B) For COVID-19 cases who never develop COVID-19 symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.
However, the California Department of Public Health (CDPH) has recently released the following revised definitions in its latest order. According to the ETS, this Order immediately updates the definitions in the ETS.
- Close Contact is now defined as someone “sharing the same indoor airspace (e.g., home, clinic waiting room, airplane, etc.) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual five-minute exposures for a total of 15 minutes) during an infected person’s (laboratory-confirmed or a clinical diagnosis) infectious period.” (emphasis added).
- Infectious Period is now defined as:
- For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5–10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
- For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after positive specimen collection date (or through Days 5–10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.
These new definitions will have a significant impact on not only employer contact tracing procedures, but will also affect employee notifications, testing, and face covering policies as the number of individuals that will be considered “close contacts” will expand. While little guidance is available regarding what is considered “same indoor airspace,” it is conceivable that in open plan designs, this could include a whole floor or even facility.
Accordingly, employers should immediately review and revise their current COVID-19 policies and procedures to ensure compliance with the new CDPH/ETS definitions.
Cal/OSHA releases draft COVID-19 permanent standard
Although less of an immediate impact, Cal/OSHA recently released its COVID-19 permanent standard draft. A permanent standard is meant to replace the current COVID-19 Prevention ETS when it expires on January 1, 2023.
The permanent standard draft includes many revisions to the current ETS, including:
- Sunsets after two years—as drafted, the “permanent” standard will only be in place for two years after its effective date.
- Close contact definition updated to align with CDPH—“Close contact” will be updated to mean “sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, regardless of the use of face coverings, unless close contact is defined by regulation or order of the California Department of Public Health (CDPH). If so, the CDPH definition shall apply.” (emphasis added). This aligns with the current CDPH definition (see above).
- “Exposed group” remains the same—the definition of “exposed group” saw no substantive revisions. This will continue to have a significant impact on employers’ abilities to manage “outbreaks.”
- No COVID-19 specific plan, addressed under IIPP—COVID-19 will now be considered a workplace hazard to be addressed under 8 CCR 3203—Injury and Illness Prevention Program Standard. Practically speaking, the proposed permanent standard will no longer dictate elements of an employer’s COVID-19 plan and will allow for more employer flexibility as public health guidance changes.
- Employees that work with others will be considered potentially exposed—the draft states that “COVID-19 shall be considered a hazard specific to an employee’s job assignments and job duties if those assignments and/or duties bring the employee near other persons.” In other words, all employees working with others will be considered exposed to COVID-19 and employer policies will have to reflect this hazard.
- Additional flexible to follow current public health guidance—the draft will require employers to review applicable orders and guidance related to COVID-19 from the State of California and the local health department with jurisdiction over the workplace. This will allow employers to pivot as guidance evolves.
- Relaxed timing of employee close contact notifications—employers will be required to notify employees and independent contractors who had a close contact, as well as any employer with an employee who had a close contact, “as soon as possible.”
- AB 685 notification requirements continue, as applicable—employers will still continue to be required to apply AB 685 notice requirements until the statute sunsets.
- Changes to screening procedures—while the draft standard does not include per se screening requirements, it does require that the employer identify and respond to persons with COVID-19 symptoms in the workplace and to encourage employees to report symptoms and stay home.
- Exclusion pay provisions removed—exclusion pay will no longer be required when employees are required to be excluded due to workplace COVID-19 exposures.
- Outbreak sections remain the same—despite the difficulties with exposed group determinations, the outbreak sections are combined together but substantively remain the same.
While a date for the public hearing for the permanent standard has not yet been set, employers should review the proposed draft now and provide comment to Cal/OSHA as necessary.
As part of its COVID-19 coverage, Nixon Peabody will continue to provide updates on these and other issues facing employers.