California Department of Public Health Order Alters “Close Contact” and “Infectious Period” Definitions Under Cal/OSHA COVID ETS

On June 8, 2022, the California Department of Public Health (CDPH) issued an Order (June 8th Order) defining “Close Contact” and “Infectious Period” for purposes of the CDPH’s Isolation and Quarantine Guidance issued on April 6, 2022 (April 6th Guidance).  Because the definitions in the new Order directly affect requirements under the currently effective Third Revised COVID Emergency Temporary Standard, California employers should be aware of this development.

Under the June 8th Order, close contact is defined as:

someone sharing the same indoor airspace (e.g., home, clinic waiting room, airplane etc.) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes) during an infected person's (laboratory-confirmed or a clinical diagnosis) infectious period.

The June 8th Order defines infectious period 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 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 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.

While the June 8th Order parrots the definition of close contact included in the April 6th Guidance, and therefore could appear insignificant, a close examination of Cal/OSHA’s Third Revised Emergency Temporary Standard (Third Revised ETS), which went into effect May 6, 2022, reveals otherwise. The Third Revised ETS retains the prior definition of close contact, which includes “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘infectious period’ defined by this section, regardless of the use of face coverings…” but added a key addition: “unless close contact is defined by regulation or order of the CDPH. If so, the CDPH definition shall apply.” Title 8 CCR 3205(b)(1) (emphasis added). Thus, while the April 6th Guidance used “airspace” for purposes of determining close contacts, Cal/OSHA confirmed at a public meeting of the Standards Board on April 21, 2022, that this definition was not incorporated in the Third Revised ETS because the April 6th Guidance was just guidance, and so the definition was not contained in an “order of the CPDH.” Title 8 CCR 3205(b)(1). The June 8th Order changes that.

Accordingly, it now appears that the more expansive close contact definition included in the CDPH June 8th Order, which references “the same indoor airspace” as opposed to “within six feet” applies to the Third Revised ETS. This implicates:

  1. Contact tracing procedures and determining potential close contacts, Title 8 CCR 3205(c)(3)(A) and (B)(2).
  2. Notification requirements, Title 8 CCR 3205(c)(3)(B)(4)(a).
  3. The scope of employees who must be offered testing and who must wear a mask following exposure, Title 8 CCR 3205(c)(5)(A).
  4. Potential exclusion and availability of exclusion pay, Title 8 CCR 3205(c)(9)(B) and (C).
  5. Who must be excluded in the event of a minor outbreak if they do not test, Title 8 CCR 3205.1(b)(C).
  6. Who must quarantine in employer-provided housing, Title 8 CCR 3205.3(g)(1).

The Third Revised ETS defined infectious period with the same incorporation language, i.e., “unless otherwise defined by CDPH regulation or order, in which case the CDPH definition shall apply.” Title 8 CCR 3205(b)(9). Thus, it also appears the definition of infectious period included in the June 8th Order now applies to the Third Revised ETS. This revised definition effectively cuts off the infectious period if a COVID-19 case tests negative on or after day 5.  

In addition to the new Order, CDPH also published four new documents on June 8, 2022, which discuss various aspects relating to requirements under AB 685 (as amended by AB 654) for employers to report COVID cases to certain employees and others, and outbreaks to local health departments.  Employers should keep in mind that these reporting obligations are in addition to obligations that exist under the CA ETS. 

The new CDPH publications include Employer Guidance on AB 685 Definitions, which helpfully clarifies that the term infectious period under AB 685 is intended to be aligned with the same definition of that term described above in the new Order.  A separate publication, Employer Questions About AB 685, California’s COVID-19 Law, reiterates (among other things) that an employer must provide written notice within one business day of identifying a case of COVID-19 in the workplace to all employees present at the same worksite, as well as to the employer of any subcontracted workers, and any labor representative.  For this reporting obligation purpose, worksite means:

the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter, locations where the worker worked by themselves without exposure to other employees, or to a worker's personal residence or alternative work location chosen by the worker when working remotely. In a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.

The other two documents also published by CDPH the same day address COVID-19 outbreak definitions and explanation of how employers and local health departments should report and handle outbreak information.

Littler will continue to monitor this active area.  Employers should consult with their employment counsel regarding ongoing developments and how they may affect any possible changes to their own workplace safety plans.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.