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While COVID-19 is in the rear view mirror for many of us, California regulators continue to issue new rules that employers must remain aware of. Within the past few months, the state has made significant changes to the current COVID-19 regulatory scheme. In February, Cal-OSHA retired the previous emergency temporary standards, which regulated COVID-19 safety in the workplace, and replaced them with new non-emergency COVID-19 regulations. On March 13th, the California Department of Public Health cut its isolation requirements for those infected with COVID-19 in half. Effective April 3rd, the CDPH will rescind its healthcare worker vaccination and masking mandates that have been in place for over a year. These important new developments are described in detail below.
New Definitions of “Close Contact” & “Infectious Period”
The California Department of Public Health (CDPH) issued new public health orders on October 13, 2022 and November 9, 2022, changing the definition of a COVID-19 “close contact” for the purpose of quarantine requirements. The new definition is as follows:
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Small Indoor Spaces (400,000 or fewer cubic feet per floor): a person is a “close contact” if they shared the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period with a COVID infected individual during their infectious period.
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Large Indoor Spaces (greater than 400,000 cubic feet per floor): a person is a “close contact” if they were within six feet of a COVID infected individual for a cumulative total of 15 minutes or more over a 24-hour period during their infectious period.
- Spaces that are separated by floor to ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, etc.) must be considered distinct indoor spaces.
Until last summer, being a “close contact” required an individual to be within six feet of an infected person for 15 minutes or more, regardless of the size of the indoor space. However, on June 8, 2022, the CDPH first introduced the idea of “sharing the same indoor space” and eliminated the six feet requirement. These new public health orders come as a pleasant surprise for larger workplaces as they are now subject to the previous, narrower standard that had been in place for years
A person is only a “close contact” if they were exposed to the infected person during their “infectious period.” Previously, a person’s infectious period was measured from two days before the onset of COVID symptoms until (1) ten days after symptoms began, (2) 24 hours have passed without a fever (without the use of fever reducing medication), and (3) symptoms have improved. For asymptomatic COVID cases, the infectious period was the ten day period beginning two days before the positive test was collected. On March 13th, the infectious period was cut in half and is now measured as follows:
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For symptomatic COVID cases, from two days before the onset of symptoms until (1) five days after symptoms first appeared, (2) 24 hours have passed without a fever (without the use of fever reducing medication), and (3) symptoms have improved.
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For asymptomatic COVID cases, the five day period beginning two days before the positive test was collected.
Isolation & Quarantine Orders
The CDPH significantly reduced its isolation and quarantine requirements for those infected with COVID-19. Previously, persons infected with COVID-19 needed to isolate for ten days unless they tested negative after the fifth day. Those leaving isolation before the tenth day were required to wear a face covering when around others. In alignment with recent guidance from the CDC, the CDPH revised its isolation and quarantine requirements to the following:
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COVID-19 Cases: Must isolate for at least five days from the onset of symptoms (Day 0) if symptomatic or the date of the first positive test (Day 0) if asymptomatic. Isolation can now end after Day 5 if symptoms are mild and improving and the person is fever-free for 24 hours without the use of fever reducing medication. A negative test is no longer required to end isolation after Day 5. Infected persons can remove their masks before Day 10 if they have two negative tests at least one day apart.
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Close Contacts: Not required to isolate or quarantine unless symptoms develop, in which case close contacts must test and stay home until they receive a negative result. Masking around others is recommended but not required.
In addition to the orders of the CDPH, employers are also required to follow any applicable health orders of the local health department with jurisdiction over their workplace. Most local health departments conform to the CDPH’s guidance. For example, the Los Angeles County Department of Public Health has already aligned itself with the CDPH’s new guidance. Nevertheless, employers should check the current guidance from their local health department to ensure that they can implement the new guidance from the CDPH.
Healthcare Worker Vaccination Mandate
Effective April 3, 2023, the CDPH is rescinding its healthcare worker COVID vaccine mandate that has been in place since August of 2021. For the last one and a half years, California has required all healthcare workers to be fully vaccinated against COVID-19 absent a religious or medical exemption. As of April 3rd, California will no longer require healthcare workers to be vaccinated against COVID and all the requirements of the previous public health order will be rescinded, including the testing and recordkeeping requirements.
In addition to the vaccine requirement, the CDPH also rescinded its healthcare facility masking requirement as well. As of April 3, 2023, California will no longer require face coverings in high-risk settings (e.g., healthcare settings, long term care settings, homeless shelters) or any other setting, regardless of the community transmission level. While masking is still recommended in indoor high-risk settings when the community transmission level is medium or high, it is no longer required by the state.
While the CDPH is eliminating its masking and vaccination requirements for healthcare settings, employers are still subject to both federal and local regulations. The federal Centers for Medicare & Medicaid Services (CMS) regulations still require certain staff of Medicare and Medicaid certified providers to be vaccinated against COVID. The recent changes from the CDPH have no effect on the CMS regulations and covered workplaces must still comply with those requirements. Local health departments may also have regulations that differ from the CDPH’s guidance and employers must comply with the orders of the health department with jurisdiction over their workplace. For example, the Los Angeles County Department of Public Health recently announced that they will continue to require healthcare workers to be vaccinated and wear masks in patient care areas until at least September 2023, despite the contrary CDPH guidance. However, the County did rescind its vaccination mandate for workers at correctional, detention, and adult care facilities effective April 3, 2023.
Non-Emergency COVID-19 Prevention Regulations
Since the COVID-19 pandemic began, Cal-OSHA has issued temporary emergency regulations regarding workplace COVID-19 policies. The latest ETS went into effect on May 6, 2022, and was set to expire at the end of the year. After much discussion, non-emergency COVID-19 prevention regulations were finally adopted by the Occupational Safety and Health Standards Board in December 2022 and approved by the Office of Administrative Law on February 3, 2023. The new regulations went into effect immediately, replacing the previous ETS, and will remain in place until February 3, 2025.
The new COVID-19 regulations make several significant changes to the previous ETS, summarized below.
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Exclusion Pay. The previous requirement of unlimited exclusion pay for those excluded from work due to a COVID exposure in the workplace is eliminated. However, employers still need to inform excluded employees of the various benefits available to them.
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Injury and Illness Prevention Program (IIPP). The previous ETS required employers to implement a COVID-19 Prevention Program (CPP) that could either be integrated into an IIPP or maintained as a separate document. The new regulations identify COVID as a workplace hazard that must be addressed either in an IIPP or a separate document.
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Outbreaks. Under the previous ETS, a COVID “outbreak” occurred if three or more employees within an “exposed” group tested positive during a 14-day period and lasted until there were no new COVID cases within the exposed group over a 14-day period. Now, the outbreak obligations end once there are one or fewer COVID cases within the exposed group over a 14-day period, rather than no new cases.
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Previously Infected Employees. Employees who recently had COVID and returned to work are exempt from certain requirements, including the provision of no cost COVID testing on paid time when they are a close contact in the workplace. Under the previous ETS, an employee qualified as previously infected if they had COVID within the past 90 days. The new regulations reduce that time period to only 30 days.
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COVID-19 Testing. Under the new regulations, employers are no longer required to provide no cost COVID testing during paid time to employees with COVID symptoms. No cost testing is only required for certain employees during an outbreak and for employees with close contact in the workplace.
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