Cal-OSHA released an updated set of rules regarding COVID-19 that went into effect on Friday, January 14, 2022. As cases from the Omicron variant race through communities and case rates spike to their highest levels yet, Cal-OSHA aims to further protect California workplaces from this latest curveball in the pandemic.

Important New Rules

  • Employers must make COVID test available for all exposed employees in the workplace at no cost- during paid time.
  • Tests may not be self-administered at home by employees any longer.
  • Vaccinated employees who are showing no symptoms now must be sent home unless they wear a mask while at work and maintain a six feet social distancing circle.
  • If an employee chooses to wear a cloth mask (instead of a surgical or N95/ KN95 type mask) employer must ensure that it is thick enough to offer true protection.
  • The new Cal-OSHA emergency regulations applies to all employers, employees, and places of employment with the following exceptions:
  • Work locations where there is only one employee who does not have contact with other people.
  1. Employees who are working from home.
  2. Employees who are covered by the Aerosol Transmissible Diseases regulation (Cal. Code Regs., tit. 8, § 5199) (section 5199).
  3. Employees working from a location chosen by the employee that is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).

Updates on Testing Requirements:

If an employer experiences an outbreak of COVID cases in the workplace, employers should make FDA-approved COVID tests available to all exposed employees at no cost, during paid time. This also applied to fully vaccinated workers who are asymptomatic.

The tests can no longer be completed at home independently by the employee after an outbreak has occurred. Tests not conducted at work must be processed by a lab, observed by a medical professional during a tele-heath appointment, or administered an observed by other medical professionals in person.

Exposure of Employees to COVID

Before these new regulations went into effect, a fully vaccinated employee exhibiting no symptoms after exposure did not have to be excluded from or sent home from the workplace. Now vaccinated, asymptomatic employees must be sent home unless they wear a mask at all times and maintain social distancing of six feet while at the workplace.

Face Coverings

The new regulations also clarify the types of masks that are sufficient in the workplace. If an employee chooses to wear a cloth mask it must be sufficiently thick and tightly woven to not let light pass through it. It must also pass the seal test meaning that it adheres closely to the face at all points around the nose and mouth. Employers must also mandate that employees wear proper masks at work indoors at least through the current mask mandate date, which is set to expire on February 15. Employees need not wear masks if they are alone in a room with a closed door, or if the business only has a single person working.

  • Employers must provide face coverings to all employees upon request regardless of vaccination status.
  • The employer to instruct and ensure to the extent possible that the face coverings are worn in vehicles and when employees are indoors.
  • Face shields are not a replacement for face masks, but may be worn in addition to:
    • Alone in a vehicle.
    • While eating or drinking.
    • Employees who can’t wear masks due to medical condition or hearing impairment.
    • Specific employment tasks that cannot be completed with a mask on.
    • Employees wearing respirators.
  • No employer shall prevent an employee from wearing a face covering.
  • Employer should clearly post requirements that face coverings must be worn at the workplace.
  • Employers must also provide face coverings to employees upon request, regardless of their vaccination status.

Steps an Employer Should take When a COVID Case is Discovered at the Workplace Including Notice Requirements

  • Step One: Determine the date and time the individual(s) with the COVID case was last at work as well as the date of the positive COVID test an onset of symptoms.
  • Step Two: Determine which other employees, customers, etc. may have had close contact with the infected individual.
  • Step Three: Within one business day, the employer should provide notice to any authorized representative of any employee who was at the workplace during the high exposure risk time period.
  • Step Four: Make COVID testing available and free to all employees who had close contact with the infected employee in the workplace.
  • Step Five: Within one business day employer must give written notice to all employees who may have been exposed to COVID.
  • Step Six: Investigate whether workplace conditions could have contributed to the risk of COVID exposure and what could be done to reduce COVID exposures.

Reporting

Employers must report information about COVID-19 outbreaks and cases to the local department of health. Businesses should also keep a written record of steps they have completed to implement a COVID-19 Prevention Program. Access to the COVID-19 Prevention Program must be made available to all employees for their review. The employer must also track all cases by recording the infected person’s name, contact information, occupation, department or location where employee worked, date of last day at workplace, and date of positive COVID test. It is important to note that the personal identifying information of a COVID positive employee or other person associated with your workplace must remain confidential.

Return to Work Criteria – Isolation and Quarantine Guidance

  • Exclusion Requirements for Employees Who Test Positive for COVID-19 (Isolation)

The below requirements apply to all employees, regardless of vaccination status, previous infection, or lack of symptoms)

  1.  Employees who test positive for COVID-19 must be excluded from the workplace for at least 5 days.
  2.  Isolation can end and employees may return to the workplace after day 5 if symptoms are not present or are resolving, and a diagnostic specimen collected on day 5 or later tests negative.
  3. If an employee is unable or chooses not to test at all and their symptoms are not present or are resolving, isolation can end and the employee may return to the workplace after day 10.
  4. If an employee has a fever, the isolation from work must continue and the employee may not return to work until the fever resolved completely. (A fever is a measured body temperature of 100.4 degrees Fahrenheit or higher and a fever resolves when 24 hours have passed with no fever, without the use of fever-reducing medications.)
  5. If an employee’s symptoms other than fever are not resolving, they may not return to work until their symptoms are resolving or until after day 10 from the positive test.
  6. Employees must wear face coverings around others for a total of 10 days after the positive test, especially in indoor settings. (See above face covering section for additional information.)
  • Employees Who Are Exposed to Someone with COVID-19 (Quarantine)

The below requirements apply to employees who are either unvaccinated or vaccinated and booster-eligible but have not yet received their booster dose.

  1. Employees must be excluded from the workplace for at least 5 days after their last close contact with a person who has COVID-19.
  2. Exposed employees must test on day 5.
  3. Quarantine can end and exposed employees may return to the workplace after day 5 if symptoms are not present and a diagnostic specimen collected on day 5 or later tests negative.
  4. If an employee is unable or chooses not to test and does not have symptoms, quarantine can end and the employee may return to the workplace after day 10.
  5. Employees must wear face coverings around others for a total of 10 days after exposure, especially in indoor settings. Please refer to the section in this FAQ on face coverings for additional face covering requirements.
  6. If an exposed employee tests positive for COVID19, they must follow the isolation requirements above.
  7. If an exposed employee develops symptoms, they must be excluded pending the results of a test.
  8. Employees are strongly encouraged to get vaccinated or boosted.
  • Employees Who Are Exposed to Someone with COVID-19 (No Quarantine Required)

The below requirements apply to employees who are either boosted or vaccinated, but not yet booster-eligible.

Employees do not need to quarantine if they:

  1. Test on day 5 with a negative result.
  2. Wear face coverings around others for 10 days after exposure, especially in indoor settings.
  3. If employees test positive, they must follow isolation recommendations above.
  4.  If employees develop symptoms, they must be excluded pending the results of a test.

Critical Staffing Shortages

During critical staffing shortages when there isn’t enough staff to safely care for patients employees may return who did not develop symptoms after exposure after 7 days from the date of the last exposure if they have had a negative PCR test after day five. This includes healthcare workers, emergency response workers and social workers who did not develop symptoms.

Moving Forward

Many businesses are concerned with the logistics of enforcing and implementing these new measures. It is difficult to find COVID test kits and the new rules do not provide guidance for employers who cannot locate or obtain tests for their employees. In addition, ensuring that employees are wearing proper masks is extremely subjective and requires employers to make a judgment call that they may not feel qualified to make.

The attorneys at WSHB are ready to answer any and all questions you may have regarding these new requirements. Please do not hesitate to reach out to the author of this article or any member of our employment law practice team.

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