On April 6, 2022, the California Department of Public Health (“CDPH”), issued updated quarantine and isolation guidance and one of the most significant changes is that the guidance no longer requires quarantine of asymptomatic persons following exposure to COVID-19 which impacts employers and the Cal/OSHA ETS exclusion rules concerning exposed persons. Previously, the Governor signed Executive Order N-84-20, which was previously described as follows in Cal/OSHA’s FAQ:
“[T]he recommended isolation and quarantine periods in the ETS (also called “exclusion periods” in the ETS) will be overridden by any applicable isolation or quarantine recommendation by the CDPH or, if applicable, the local health department with jurisdiction over the workplace, if the periods in the ETS are longer than those recommended by the CDPH or local health department.” (Cal/OSHA FAQ.)
Based on the CDPH’s April 6 revision, it appears arguable that employers are no longer required to exclude asymptomatic employees who have simply had “close contact.” It is important to note that, presently, Cal/OSHA has not updated its FAQ or provided other information to state this, and that CDPH’s guidance states that exposed persons should wear a well-fitted mask for a full 10 days following their exposure to a COVID-19 case. Once Cal/OSHA updates its FAQ, adopts the proposed regulatory language (see below), or provides further information, this will be certain.
Cal/OSHA ETS Update
On April 21, 2022, Cal/OSHA Standards Board (“OSHSB”) will meet to consider the readoption of an amended Emergency Temporary Standard concerning COVID-19. The readoption makes a number of changes that provide both clarity and confusion. The language that is publicly available is simply draft language, which means that proposals may not be adopted in full or at all. However, it is useful to highlight some of the potential points that these proposed revisions make. The proposed language:
- Removes the confusing “light test” criteria for face coverings.
- Removes the general “cleaning and disinfection” procedures for high touch surfaces from the “Engineering Controls” section. Employers must still implement appropriate disinfection plans in line with AB 685 when there has been a case present and should consider cleaning of high-touch surfaces as a discretionary control as part of the worksite-specific COVID-19 Prevention Program and hazard assessment responsibilities.
- Expressly references the Governor’s Executive Order N-84-20 with respect to exclusion and isolation periods.
- Relabels the “high-risk exposure period” as the, “infectious period.” The definition of “close contact” has been modified to include criteria which the CDPH might define in the future.
- Removes a substantial part of the language relating to exclusion of “close contact” employees and replaces it with the following, “Employers shall review current CDPH guidance for persons who had close contacts, including any guidance regarding quarantine or other measures to reduce transmission. Employers shall develop, implement, and maintain effective policies to prevent transmission of COVID-19 by persons who had close contacts.”
- Provides shortened periods of exclusion consistent with current CDPH guidance.
- Modifies the period of exceptions relating to recent COVID-19 cases to incorporate potential CDPH guidance concerning the applicable period of time that applies.
- Simplifies the testing “return-to-work” criteria by providing that a self-read and self-administered (i.e. an antigen at-home test) is acceptable if there are “means of independent verification.” The regulations provide an example of a time-stamped photograph of the results. As many may know, metadata in cellphone pictures can indicate when the photograph in question was taken.
Notably, the proposed ETS regulations do not modify the “exclusion pay” requirements.
Should you have questions about your business’ COVID-19 regulation compliance, please contact the attorneys at Sagaser, Watkins & Wieland, P.C.
Occupation Safety & Health Standards Board ETS Page: https://www.dir.ca.gov/OSHSB/COVID-19-Prevention-Emergency.html
OSHSB Proposed Language Showing Changes from Present Regulation: https://www.dir.ca.gov/OSHSB/documents/Apr212022-COVID-19-Prevention-Emergency-txtcourtesy-3rd-Readoption.pdf
Cal/OSHA ETS Landing Page: https://www.dir.ca.gov/dosh/coronavirus/ETS.html
Cal/OSHA ETS FAQ (Long): https://www.dir.ca.gov/dosh/coronavirus/covid19faqs.html
Cal/OSHA ETS FAQ (Short): https://www.dir.ca.gov/dosh/coronavirus/Revisions-FAQ.html
CDPH Guidance on Face Coverings: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx#
CDPH Quarantine and Isolation Guidance: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx