On January 6, 2022, Cal/OSHA published an updated FAQ addressing how the new CDPH recommended isolation and quarantine periods affect its Emergency Temporary Standards (“ETS”). As discussed in our prior alert the Governor’s Executive Order requires that the CDPH recommended isolation and quarantine periods will supplant the return to work requirements in the ETS. The FAQ clarifies that the updated CDPH guidance not only controls when employees can return to work but also who may be excluded from work to begin with, thereby resolving a point of confusion we noted in our prior alert. While the guidance states that the CDPH recommendation will not trump the ETS requirements until January 14, when the revised ETS takes effect, it recommends that employers begin implementing the CDPH isolation and quarantine periods.
The CDPH recommendations which apply over the requirements of the ETS going forward are as follows:
- Positive Test. If an employee tests positive, regardless of their vaccination status or whether they have had a previous COVID-19 infection, they must be excluded from the workplace for at least 5 days. The employee may return to work after day 5 if symptoms are not present or are resolving and a COVID-19 test, collected on day 5 or later, comes back negative. The guidance recommends an antigen test, versus a PCR test for this purpose. If the employee is unable to test or refuses to test they cannot return to work until 10 days have passed since the test and they no longer have a fever. Employees who return to work before 10 days have elapsed must wear a well-fitting face covering for 10 days after the positive test. Effectively this means that employees will have to wear a mask for up to five days after returning to work. However, local jurisdictions may have their own masking requirements which require masks of all employees anyways.
- Exposure of an Unvaccinated or Booster Eligible Employee. The FAQs makes clear that the term unvaccinated does not exempt those who have had a previous COVID-19 infection which is a departure from the terms of the ETS which did not require that these employee be excluded.
- Now all “naturally immune” employees (those that have had COVID-19 within the last 90 days) will be treated the same as an unvaccinated employee if they do not otherwise have a COVID-19 vaccination.
- If an employee is unvaccinated or booster eligible, they will have to be excluded from work for at least 5 days following the exposure, i.e., “close contact” with COVID-positive person. Excluded employees should test on day 5 and can return to work and wear a mask for a total of 10 days following the exposure if they are asymptomatic and the test comes back negative.
- In the case of booster eligible employees, they may return to work sooner if they receive a negative COVID test within 3-5 days after last exposure to a case, wear a face covering around others for a total of 10 days after the exposure, and continue to have no symptoms. If any employee in this category refuses to test or is unable to test they must remain at home for 10 days. If the employee develops any symptoms during while excluded they are to be excluded pending the results of a test.
- As noted in our prior Alert, an employee is booster eligible 6 months after a two dose regimen of vaccination (Pfizer or Moderna) and 2 months after receiving the Johnson & Johnson vaccination.
3. Exposure of a Vaccinated but not Booster Eligible or Boosted Employee. Employees in this category do not have to quarantine after an exposure but should test on day 5 after the exposure and wear a face covering for a total of 10 days following the exposure. If the employee later tests positive they should quarantine subject to paragraph one above. If the employee develops any symptoms during this time they are to be excluded pending the results of a test.
4. Employee Subject to Order to Isolate or Quarantine. When an order to isolate, quarantine, or exclude an employee is issued by a local or state health official, the employee cannot return to work until the period of isolation or quarantine is completed or the order is lifted even if the order exceeds the specified exclusion requirements in the ETS or CDPH recommendation.
These detailed requirements clear up many of the questions employers had such as how to handle employees with previous COVID infections and the scope of the Governor’s Executive Order. What is not addressed in the FAQs is the practical effect of requiring testing. Given the current difficulty of being able to test, employees are unlikely to find available testing within the required timeframes. Thus, employers should be prepared for employees remaining in quarantine for the longer 10 day period and should not hold count of an employee returning sooner.
As a practical note, working with our healthcare clients shows us the strain being place on healthcare due to the aggressive spread of Omicron. Staffing is down due to infections and testing resources are limited. Consequently, we have been advised that testing should be reserved for people who are symptomatic or who have had close contact exposures and do not have access to home antigen testing. We have also been advised that if a home antigen test is positive, since that test is very specific there is no need for a confirmatory PCR test. However, if the home antigen test is negative but the person is showing COVID symptoms, the person should consider getting a PCR test which is a more sensitive test. Most importantly, if an employee has tested positive, they should isolate as outlined by the regulatory guidance and follow each employer’s COVID-19 protocols.
Stradling Has Resources To Help You Stay Compliant
To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you want to make sure you are in compliance with the applicable industry guidelines.
Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.