On April 21, 2022, the California Division of Occupational Safety and Health (“Cal/OSHA”) Standards Board adopted the fourth iteration of its COVID-19 Emergency Temporary Standards (“ETS”). Sheppard Mullin previously wrote about the proposed revisions to the current ETS here, which were adopted without substantive changes. The revised ETS will become effective once approved by the Office of Administrative Law, which should occur by May 5, 2022, and the revised ETS will remain in effect until December 31, 2022.
Updates to Cal/OSHA’s FAQ guidance on the ETS should be published soon. One area that Cal/OSHA has indicated it will address in its guidance is the interaction between the ETS and the California Department of Public Health’s (“CDPH”) recently updated isolation and quarantine guidance. Under the new ETS, close contacts are no longer excluded from the workplace. Instead, the ETS merely instructs employers to review current CDPH guidance and to develop and implement policies to prevent transmission by close contacts. The revised ETS also removed specific return-to-work criteria for close contacts, meaning employers simply must follow current CDPH and/or local quarantine guidance. It is unclear if the FAQ guidance will cover whether employers must do more, or can opt to do more, than CDPH or local quarantine guidance requires.
Due to the ETS’ reliance on the CDPH’s guidance, employers should ensure they are familiar with and, at a minimum, following the current guidance. Up until April 6, 2022, the CDPH guidance for the general public required a quarantine period for asymptomatic close contacts who were not fully vaccinated and boosted. However, the CDPH now instructs that asymptomatic close contacts, regardless of vaccination status, do not have to quarantine so long as they get tested 3-5 days after exposure and wear a well-fitting mask around others for 10 days. Additionally, those who have been infected with COVID-19 in the past 90 days do not have to quarantine or get tested unless symptoms develop, but should wear a well-fitting mask around others for 10 days.
The CDPH’s updated guidance also expanded the definition of a “close contact” to include individuals “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 . . . during an infected person’s . . . infectious period.” This definition differs from the revised ETS’ definition that still identifies close contacts as individuals who were within six feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the infectious period. Cal/OSHA has indicated that the CDPH’s definition does not supersede the ETS definition. Presumably, the FAQ guidance will address the conflicting definitions.
Main Takeaway
Now that the revised ETS has been adopted by Cal/OSHA, employers should consult with experienced employment counsel and should review and update their COVID-19 Prevention Program and corresponding protocols and policies to comply with the new ETS. Sheppard Mullin will continue to monitor developments in this area.
The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.