Late on January 6, 2022, Cal/OSHA updated its FAQs on its COVID-19 Emergency Temporary Standard (“ETS”) incorporating recommendations issued by the California Department of Public Health (“CDPH”) on isolation and quarantine periods (also known as exclusionary periods). While the Cal/OSHA exclusionary periods have remained constant for the past six months, recommendations from the CDC and CDPH have changed several times. Currently, the recommendations from the CDC and CDPH are assuming that the omicron strain is less serious, and that people can return to the workplace and reintegrate into society much more quickly.
The Cal/OSHA update helps clarify the amount of time an employee must be excluded from the workplace in the event the employee has COVID-19 or has been in close contact with others with COVID-19.
History of Excluding Employees from Work
When Cal/OSHA approved the current ETS in June of 2021, it included rules requiring employers to exclude from the workplace employees with COVID-19 and persons who were exposed to COVID-19. These exclusionary periods differed from recommendations provided by the CDC and the California Department of Public Health (“CDPH”).
Accordingly, Governor Newsom issued an executive order that declared the ETS exclusionary periods are overridden by CDPH recommendations when they were longer than those recommended by the CDPH.
Last night’s announcement clarifies that employers should follow the CDPH guidelines when determining how many days an employee with COVID-19 or exposed to COVID-19 must remain away from the workplace. In fact, Cal/OSHA recommends we begin following the ETS now which does not go into effect until January 14, 2022.
Exclusion Rules Under the January 2022 ETS
Employees Who Test Positive for COVID-19. Employees who test positive must be excluded from the workplace for at least 5 days. They may return after day 5 if symptoms are not present or are resolving and a specimen collected on day 5 or later tests negative.
If an employee does not test but the employee’s symptoms are not present or are resolving, the employee may return after the 10th day of exclusion.
Any employee must continue to be excluded until any fever resolves. “Fever” means a body temperature of 100.4 degrees Fahrenheit or higher. Resolution of the fever means the body temperature is less than 100.4 degrees Fahrenheit for at least 24 hours without fever-reducing medication.
The employee must continue to avoid the workplace if symptoms are not resolving or until day 11 from a positive test. Employees who do return to the workplace must wear face coverings around others for 10 days after a positive test.
Exposed Employees Who are Unvaccinated or Did Not Receive a Booster. Cal/OSHA and the CDPH consider a person who has been vaccinated but has not received a booster for which the person is eligible to be the same as an unvaccinated person. These persons must be excluded from the workplace for at least 5 days after the last close contact with a COVID-19 case. These persons must also test on day 5. If the test is negative and if symptoms are not present, the person can return to the workplace. An employee who does not have symptoms but who does not test must be excluded from the workplace after 10 days of exclusion.
Employees must wear face coverings around others for 10 days after close contact.
If an exposed employee develops symptoms, the employee must be excluded pending the results of a test.
A person is eligible for a booster 6 months after the second dose of the Moderna or Pfizer vaccine. A person is eligible for a booster 2 months after the Johnson and Johnson vaccine.
Exposed Employees Who are Fully Vaccinated. If the employee has been vaccinated and has either received a booster or is not yet eligible for a booster may remain at work even if in close contact with a person with COVID-19. However, this person must test on day 5. The test must come back negative. This employee must also wear a face covering for 10 days after exposure. If the employee develops symptoms, the employee must be excluded pending the results of a test.
Date of COVID-19 Testing. Employees with COVID-19 must test on or after day 5 of a positive test. Employees partially or fully vaccinated must test on day 5. I’m not sure why the law makes this distinction. Cal/OSHA says that employers should follow the ETS for fully vaccinated employee who “cannot be tested on day 5.” This means that fully vaccinated employees must wear a face covering and maintain six feet of distance for 14 days following close contact.
Do You Need More Information?
Do you need help with managing the ever-evolving COVID-19 laws? Join us for a zoom conference on Thursday, January 27th at 9 am. Register at [email protected].