By Rachel H. Khedouri, Esq. and Carol K. Shieh, Esq.
Here we go again…On January 5, 2022, the California Department of Public Health (“CDPH”) updated its “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public”, adjusting its recommendations regarding the isolation and quarantine periods for both vaccinated and unvaccinated workers. [CLICK HERE for the full text of the Guidance.] This guidance follows the lead of the Centers for Disease Control and Prevention, which updated its isolation and quarantine guidance last month [as discussed in our eAlert HERE].
On January 6, 2022, Cal/OSHA updated its Emergency Temporary Standards (“ETS”) FAQs section (“FAQs”) to address and adopt the new CDPH recommendations under the Governor’s Executive Order N-84-20 (details of the order are summarized below). [CLICK HERE for the full text of the FAQs.] The FAQs state that the CDPH recommendations will replace the ETS exclusion periods and return to work criteria for employees as follows:
- Employees who test positive for COVID-19, regardless of vaccination status, previous infection, or lack of symptoms, must be excluded from the workplace for at least five days. If an employee in this category has no symptoms, (or symptoms are resolving and the individual has no fever), receives a negative result on a test [1] taken on day five or later, and wears a face covering for a total of 10 days after exposure, they may return to the workplace.
- Those who are unable to or choose not to test may return to the workplace after 10 days if they remain asymptomatic or, if they had symptoms, those symptoms are resolving.
- Employees who are exposed and are unvaccinated or are vaccinated and booster eligible but have not yet received a booster, must be excluded from the workplace for at least five days after the last exposure. Exposed employees must test on the fifth day. An employee in this category may return to the workplace if they have no symptoms, receive a negative result on a test taken at five days or later, and wear a face covering for a total of 10 days after exposure.
- An exception to exclusion applies to asymptomatic employees in this category if they continue to have no symptoms, wear a face covering for 10 days after exposure, AND receive a negative result on a test taken within three to five days after the last exposure.
- Those who are unable to or choose not to test may return to the workplace after 10 days if they do not have symptoms. If symptoms develop, employees should test as soon as possible and must be excluded pending a negative result.
- Employees who are exposed and are vaccinated and have received a booster or are not yet booster eligible do not need to be excluded if they receive a negative test result on a test taken at five days, wear a face covering for 10 days after exposure, and are asymptomatic.
- Both exposed and positive individuals, regardless of vaccination status, should wear a well-fitting mask around others for a total of 10 days, even if they are able to return to the workplace sooner. As a reminder, CDPH’s prior “Guidance on the Use of Face Coverings” requires all individuals to wear masks in indoor public settings at least until February 15, 2022, with limited exceptions. [CLICK HERE for our December 15, 2021 eAlert on the statewide masking mandate.]
Employers should keep in mind that local health jurisdictions may issue more restrictive recommendations or orders on quarantine and/or isolation periods than those of the CDPH. According to Governor Newsom’s Executive Order N-84-20, the exclusion periods required by the ETS are suspended to the extent they exceed the applicable CDPH or local recommendations. When both are applicable, the longer of the state or local recommended exclusion period will prevail.
Please note that other provisions of the ETS, such as those related to face covering and social distancing requirements in the workplace, remain in effect. Please be on the lookout for the new amendments to the ETS, which go into effect this Friday, January 14, 2022. [CLICK HERE for our December 21, 2021 eAlert on the second re-adoption of amendments to the ETS.]
We will continue to keep you informed on this complex and continually evolving area of law. Please stay safe and take care.
[1] Although various types of tests are acceptable, antigen tests are preferred for purposes of testing to end isolation.
If you have questions on how long you are required to exclude employees from the workplace for COVID-19-related reasons, please feel free to reach out to NFC West at sfode@nfclegal.com or 619.292.0515.