Effective January 14, 2022, the revised Cal/Osha COVID-19 Prevention Emergency Temporary Standards (“ETS”) will be updated to include important revisions to workplace rules related to an employee’s return to work after close contact with a COVID-19 positive individual. In addition to these revised requirements, employers must continue to follow public health orders on COVID-19. On December 13, 2021, the California Department of Public Health (“CDHP”) issued new guidelines requiring the use of face coverings by all employees when indoors, regardless of vaccination status. Employees who are exempted from wearing a face covering due to a medical or mental health condition or disability must physically distance themselves at least six feet from others and either be fully vaccinated or tested at least weekly for COVID-19.

Revisions to the Return-to-Work Criteria

The period of time before an employee can return to work after “close contact” or COVID-19 infection has been revised to be consistent with the current CDPH guidelines. The time frames will automatically update if CDPH updates its guidelines pursuant to the Governor’s executive order. Both vaccinated and unvaccinated employees must be excluded from the workplace for 14 days if they come in “close contact” with someone infected with COVID-19, even if they test negative.

An exception is provided for fully vaccinated employees who do not develop COVID-19 symptoms if they do all of the following: (a) wear a face covering at the workplace for 14 days following the last date of close contact; (b) maintain six feet of distance from others at the workplace for 14 days following the last date of close contact; and (c) get a COVID-19 test three to five days after the close contact.  Close contact is defined as being within six feet of a COVID-19 positive case for a total of 15 minutes or greater in any 24-hour period.

The revised temporary rules indicate that persons who had a close contact may return to work as follows:

  1. Employees who had a close contact but never developed any COVID-19 symptoms may return to work after 14 days have passed since the last know close contact unless one of the exceptions below applies:
    1. 10 days have passed since the last known close contact and the person wears a face covering and maintain six feet of distance from others while at the workplace, for 14 days following the last date of close contact; or
    2. 7 days have passed since the last known close contact; the person tested negative for COVID-19 using a polymerase change reactions (PCR) COVID-19 test with the specimen taken day 5 or later after the last known close contact; and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of close contact.
  2. Employees who had a close contact and developed any COVID-19 symptoms cannot return to work until all of the following conditions are met:
    1. At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications; and
    2. COVID-19 symptoms have improved; and
    3. At least 10 days have passed since COVID-19 symptoms first appeared.

Employers are now required to make COVID-19 testing available at no cost and during paid time to employees who had close contact with any COVID-19 case in the workplace, even for fully vaccinated employees who are asymptomatic. During outbreaks and major outbreaks (as defined by the ETS) at the workplace, employers must make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to employees in the exposed group.

The revised ETS also updates the definition of “COVID-19 test” to exclude both self-administered and self-read tests “unless observed by the employer or an authorized telehealth proctor.” Thus, employees cannot simply report the results of a home test to their employer.

            Given the recent surge in COVID-19 cases, NavBat recommends employers review and become familiar with the revised ETS requirements and change their employment practices accordingly. As a reminder, employers must continue to maintain an effective written COVID-19 Prevention Plan that includes: (a) identifying and evaluating employee exposures to COVID-19 health hazards; (b) implementing effective policies and procedures to correct unsafe and unhealthy conditions; and (c) allowing adequate time for handwashing and cleaning frequently touched surfaces and objects. Employers must also remember to provide effective training and instructions to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19 related benefits to which affected employees may be entitled under appliable federal, state, or local laws.