Cal/OSHA Revises COVID-19 Regulations Again
Cal/OSHA Revises COVID-19 Regulations Again
The California Department of Public Health (“CDPH”) and California Division of Occupational Safety and Health (“Cal OSHA”) made some important revisions to California’s definition of “close contact” and to the expected 2-year extension of California’s COVID-19 regulations. The new Cal/OSHA regulations revise COVID-19 Regulations impacting Close Contact, Square Footage, and the 6 Foot/15 Minute Rule.
Close Contact Defined
The CDPH changed the definition of “close contact” via an immediately effective order, which will change enforcement for both large and small workplaces in California.
The CDPH website states:
“Close Contact” means the following:
- In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
- In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.
Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.
Infectious Period is defined as:
- For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5–10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
- For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after a positive specimen collection date (or through Days 5–10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.
For the purposes of identifying close contacts and exposures, infected persons who test negative on or after Day 5 and end isolation are no longer considered to be within their infectious period. Such persons should continue to follow CDPH isolation recommendations, including wearing a well-fitting face mask through Day 10.”
We are not talking about “sharing the same indoor airspace” as an infected person for 15 minutes anymore. This “indoor airspace” definition led to litigation, confusion and complete disagreement as how to regulate employees. Many employers where completely confused due to how it deviated from the prior “6-foot/15 minutes” rule. “Indoor airspace” was undefined and in this author’s opinion likely unconstitutional and a violation of the Administrative Procedures Act. What does that mean? More workers compensation liability for insurance carriers and employers and, of course, ore lawsuits against the employer, claiming employees were forced to work in close contact and in an unsafe environment.
California workplaces will be separated by their cubic footage, regardless of walls, windows or sealed doors that close with airtight HEPA filers. Workplaces larger than 400,000 cubic feet (Costco, Target, Wal-Mart) will utilize the original definition of a close contact (6 feet/15 minutes) where airspaces smaller than 400,000 cubic feet (Everyone else) will keep the more recent definition of anyone sharing the same “indoor airspace.” Notably, CDPH’s order expressly notes that where “floor-to-ceiling walls” separate portions of a workplace, those areas must be counted separately for the purposes of determining whether the workplace is 400,000 cubic feet.
Larger California Employers Win Smaller Ones Get Screwed
Large workplaces appreciate the state getting out of their business. With the biggest lobbyist, and law firms, who is surprised? In contrast with rest of us who are left litigating over this mess, the unknown “indoor airspace” standard, California’s largest warehouses, airplane hangars, or manufacturing spaces can now return to the much more practical standard of 6 feet/15 minutes to identify close contacts. This change will potentially reduce costs, the scope of obligations toward testing and masking after exposures in the workplace.
For the rest of us, my law firm office in Lake Forest included, the employer must look at whether each area inside that workplace meets the requirement, or if it is a separate airspace due to walls or similar barriers. For that reason, employers who are close to the 400,000 cubic feet limit will need to do some careful measuring — and work with contractors and lawyers – that’s right hire more lawyers! (Love it!) and see if the workspaces qualify under California’s draconian requirements, including whether it is actually separate spaces and therefore must continue under the present “indoor airspace” definition. Get out the checkbook Ms. Bookkeeper, we got some spending to do.
The Definition of the Same Indoor Airspace is Vague and Ambiguous
California employers have been objecting to the “same indoor airspace” standard earlier this year and the massive expansion of who qualifies as a “close contact” was introduced just after COVID was over. Further the standard was so difficult to understand as compared to the prior 6-foot/15-minute rule. The ridiculousness of the standard in large workplaces where an employee might never be within 30 feet of a coworker, maybe because they have an enormous 30 x 30-foot office – would apparently now be a “close contact” triggering (1) testing, (2) quarantining (aka stay at home and not work) and (3) litigation – WCAB claims or otherwise. Thank God they backed off the big employers, hopefully, the smaller ones will get reasonable regulation soon, but that appears unlikely.
Cal/OSHA Responds to Employers’ Objections to the 2-Year Order
What do agencies do to make themselves stay around longer and feel important about themselves? You guessed it – make more rules and regulations! Though the “close contacts” change is the only thing going into effect immediately, the other changes Cal OSHA changes included another 2 year extension of the COVID regulations (Horary 2 more years of new mask fashions! I was changing up and going with real mink this winter – maybe white rhino skin? Just Kidding. These will be voted on in December 2022.
On October 14, 2022 Cal/OSHA issued a 15-day change notice and made considerable changes to the draft regulation’s text thinking no one notice no doubt. Though the full import of these changes is still being reviewed, the most important are:
- New “close contact” definition based on the size of the workplace into the draft regs.
- Reducing the definition to end an “outbreak”— now one case in a two-week period does not extend the outbreak. Instead, two cases will be the threshold to continue outbreak precautions. Luckily no outbreaks for any of my friends yet.
- Changes to COVID at Work Notice requirements— with the new laws passed, including AB 2963 (Reyes; D-San Bernardino) changing notice requirements in the workplace, requiring COVID Notice until January 2024 [if an employer or representative of the employer receives a notice of potential exposure to COVID-19, the employer is required to take specified actions within one business day of the notice of potential exposure, including providing written notice to all employees on the premises at the same worksite that they may have been exposed to COVID-19 has been extended to January 1, 2024], the regulation is being adjusted to match.
California Regulations Mean Changes for Employers of All Sizes
Employers of all sizes need to pay attention to this upcoming Cal OSHA meeting. Do you remember California exclusion pay? That was Cal/OSHA’s Emergency Temporary Standards (“ETS”) on COVID-19 Prevention that required employers to exclude employees from the workplace under certain circumstances, such as when someone showed up with COVID and coughed their disgusting germs all over the office. While the employee is excluded, their employer must maintain their pay and benefits. For more information on the ETS and whether it applies to your workplace, refer to Cal/OSHA’s Frequently Asked Questions.
Remember, The ETS 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.
- Employees who are working from home.
- Employees who are covered by the Aerosol Transmissible Diseases regulation (Cal. Code Regs., tit. 8, § 5199) (section 5199).
- 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).
Exclusion pay is not included in the new proposal and will expire this December 2022 as expected. The real question is why the F*** is California looking at extending our COVID-19 regulations for 2 more years when no other states have such a regulation, and infection rates are declining in Orange, San Diego and Los Angeles Counties? When will this nightmare end? Even Governor Gavin Newsome Ordered the COVID state of emergency to end February 28, 2023, maybe we could do some coordination efforts? We suggest you ask your state representatives.
Quintilone & Associates Can Help
If you have any questions about this article, Employee handbooks (we write them too), or have issues with unpaid wages, commissions, company charges to your wages, business expenses, off-the-clock work, or any issues with your pay at your current or former employer, please feel free to contact:
Richard E. Quintilone II, Esq. Kyle Gallego Esq. or Jeffrey T. Green, Esq.
Quintilone & Associates 22974 El Toro Road, Suite 100 Lake Forest CA 92630