State and federal requirements for COVID-19 safety in the workplace continue to change and evolve. As always, Clear Law Institute is closely monitoring CDC and OSHA rules and guidance, as well as state requirements. We are also updating our COVID-19 Safe Workplace course and course materials as needed.

Cal/OSHA Update

On June 8, 2022, the California Department of Public Health (“CDPH”) issued an order updating the definitions of “Close Contact” and “Infectious Period” for California’s COVID-19 emergency temporary standards issued by Cal/OSHA (“ETS”).

The order expands the definition of Close Contact to include anyone “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 (laboratory-confirmed or a clinical diagnosis) infectious period.” The ETS previously defined this term to include only an area “within six feet” of an infected person.

The order also ends the infectious period for both symptomatic and asymptomatic COVID-19 cases after 5 days from the first positive test, or when symptoms first appeared if they test negative for COVID-19 on day 5 or later.

On July 7, 2022, Cal/OSHA issued an updated FAQ that includes some specific examples that reflect the new definition of “Close Contact” that might be useful to CA employers:

Testing FAQ #8: Explains that employers can establish which employees may have had a close contact with a COVID-19 case by determining which employees shared the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes within any 24-hour period during the COVID-19 case’s “infectious period.”

CDPH Isolation and Quarantine FAQ #2: Explains that, in some circumstances, a COVID-19 case can return to work in compliance with the ETS and CDPH guidance while still within the definition of “infectious period.” If that person complies with the return-to-work requirements, then people who share the same indoor airspace for 15 minutes or more with that person will not be considered to have a “close contact” under the ETS.

CA employers should consider how these expanded definitions affect when you must notify Close Contacts of exposure, which employees must be offered testing and wear a mask following exposure, and when employees must be excluded from the workplace and provided exclusion pay.

EEOC’s New Workplace COVID-19 Testing Rules

Employers that continue to test workers for COVID-19 should review their policies to ensure they comply with updated guidelines released on July 12, 2022, by the Equal Employment Opportunity Commission (“EEOC”). In prior guidance, the EEOC broadly allowed employers to screen workers for COVID-19 without running afoul of the Americans with Disabilities Act (“ADA”) due to the state of the pandemic. In revised guidelines, however, the agency now says employers can continue to administer viral tests as a condition of entering a worksite, so long as they can show their testing practices are job-related and consistent with business necessity. The July 12 update “makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19,” the EEOC said.