Loyola University Chicago School of Law, J.D. 2024
On October 13, the California Department of Public Health’s (CDPH) issued a change to the California Division of Occupational Safety and Health (Cal/OSHA) Covid-19 emergency standard and issued a revised proposal for the non-emergency standard. The order updates the definition of “close contact” under the Third Revised COVID Emergency Temporary Standard and took effect on October 14. This order also provides strategies to prioritize response to potential exposures.
“Close contact” controversies
The CDPH had previously issued an order on June 8, 2022, that broadened the definition of “close contact” when it replaced the “within six feet” language by announcing that person was a close contact if they shared the same airspace as a positive case for 15 minutes within a 24-hour period. For employers operating large open workspaces, this was a difficult rule to comply with.
The current order aims to find a middle ground between the original definition and the airspace concept. The CDPH attempts to make “close contact” more manageable for employers by making the two definitions more applicable depending on the size of the workplace measured in cubic feet. Under this order, larger workplaces defined to be greater than 400,000 cubic square feet are to apply the “within six feet” definition and smaller workplaces will apply the airspace concept of the rule.
Revised proposal for non-emergency Covid-19 standard
The California Occupational Safety and Health Standards Board also published a final proposed version of Cal/OSHA’s proposed non-emergency Covid-19 Standard. This proposed standard will:
- Include CDPH’s new “close contact” definition, removes the requirement that employees must be masked;
- Remove the requirement that employees be masked for one of the exceptions to the definition of “exposed group” to apply;
- Change the definition of “returned case” to shorten the applicable period from 90 days after initial symptom onset/positive test to 30 days;
- Require that employers develop, implement, and maintain effective methods to prevent transmission for indoor workplaces;
- Remove the requirement to keep a record of close contacts identified by the employer, and
- Allow employers to exit outbreak procedures when there is one or fewer new Covid-19 cases in a 14-day period.
The proposed standard will be voted upon at the Cal/OSHA Standards Board meeting in November or December, anticipating that this order would become effective on January 1, 2023.
Complying with the new proposal
Compliance is not as straightforward as employers would like. Especially with new “close contact” rules, the order will require that areas that are separated by floor-to-ceiling walls must be considered distinct indoor airspaces. Practically speaking, this additional requirement exposes large worksites to two sets of rules depending on whether the larger space is further compartmentalized by floor-to-ceiling walls. This also leaves open the question of how to proceed when each rule applies to the same employee within a 24-hour period. Merely asking employees to identify people with whom they were within six feet may not be sufficient, as employers at larger worksites will have to determine where people were located and when they interacted.
Cal/OSHA and California’s strict workplace pandemic protocols
It’s no secret that California has adopted some of the stricter rules in the U.S. for workplace pandemic safety. For example, while the U.S. Centers for Disease and Control and Prevention relaxed its guidance on mask-wearing in 2021, California employers were advised by their employment law attorneys to continue erring on the more stringent side. There has been an increase in lawsuits by employees who complain about COVID safety, and employers who need assistance should look to Cal/OSHA for answers. Worries over workplace safety, grievances about layoffs, and remote-work arrangements have heightened in the past few years, and companies need to continue taking employee livelihood and impact into consideration.
Employers should always follow the guidelines listed by Cal/OSHA when developing their workplace safety standards related to the Covid-19 pandemic. Although this proposed standard seems to ease the requirements of pandemic workplace safety, at the end of the day, Cal/OSHA works to protect employees from health and safety hazards. Thus, employers should consult their labor and employment attorneys prior to modifying or abandoning any of their existing health and safety protocols.