CA Governor Issues Executive Order Modifying Cal/OSHA Employer Quarantine Requirements
To makes things endlessly confusing and hard for California employers to keep up with, this week, Governor Newsom issued an Executive Order (EO) changing the quarantine requirements of the Cal/OSHA emergency regulations that just took effect November 30. The EO is effective immediately. Thus, employers who just scrambled to implement policies, practices, and training to comply with the strict Cal/OSHA requirements will now need to quickly modify those policies and practices to comply with the EO. Here’s what employers need to know:
The EO was issued to reflect a change in the California Department of Public Health’s (CDPH) guidance regarding the recommended length of quarantine for individuals exposed to COVID-19. The revised CDPH guidance is inconsistent with the requirements of the recently adopted Cal/OSHA regulations (which included a bright-line 14-day quarantine [and exclusion from the workplace] requirement for employees exposed to COVID-19). The new CDPH guidance appears to mirror recent changes to federal CDC quarantine guidance, and provides as follows:
- All asymptomatic close contacts (within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period) may discontinue quarantine after Day 10 from the date of last exposure with or without testing.
- During critical staffing shortages when there are not enough staff to provide safe patient care, essential critical infrastructure workers in the following categories are not prohibited from returning after Day 7 from the date of last exposure if they have received a negative PCR test result from a specimen collected after Day 5:
- Exposed asymptomatic health care workers; and
- Exposed asymptomatic emergency response and social service workers who work face to face with clients in the child welfare system or in assisted living facilities.
- All exposed asymptomatic contacts permitted to reduce the quarantine period to less than 14 days must:
- Adhere strictly to all recommended non-pharmaceutical interventions, including wearing face coverings at all times, maintaining a distance of at least 6 feet from others and the interventions required below, through Day 14.
- Use surgical face masks at all times during work for those returning after Day 7 and continue to use face coverings when outside the home through Day 14 after last exposure.
- Self-monitor for COVID-19 symptoms through Day 14 and if symptoms occur, immediately self-isolate and contact their local public health department or healthcare provider and seek testing.
- Context and Considerations
- Local health jurisdictions may be more restrictive than the above guidance.
- Health care employers with critical staffing shortages and lacking the staff to provide safe patient care may use Contingency Capacity Strategies as described by CDC where asymptomatic healthcare personnel (including in skilled nursing facilities during an outbreak when all staff are considered potentially exposed) are allowed to work with a surgical mask or respirator, but still report temperature and absence of symptoms each day until 14 days after exposure.
- Persons who reside or work in a high-risk congregate living setting (e.g. skilled nursing facilities, prisons, jails, shelters) or persons residing or working with severely immunosuppressed persons (eg. Bone marrow or solid organ transplants, chemotherapy) should still quarantine for 14 days in the absence of staffing shortages.
The EO adopts the revised CDPH quarantine guidance and suspends the Cal/OSHA quarantine regulations to the extent they require GREATER quarantine periods/exclusion from the workplace than that mandated by the CDPH guidelines and/or local health department guidance. In other words, the quarantine period for asymptomatic employees may be reduced to 10 days (and 7 days for a narrow category of specified critical infrastructure workers) and they may not be excluded from the workplace for a longer period than this under the EO, unless an applicable local health department order requires a greater period of quarantine/exclusion.
The EO’s change to the Cal/OSHA regulations requires employers to immediately review their newly adopted COVID Prevention Plan and related practices to ensure that they are in compliance with the new EO (and local health department quarantine requirements). Employers may wish to revise the quarantine/exclusion provisions to simply state that “employees with COVID-19 exposure will be excluded from the workplace and required to quarantine the period of time (generally 10-14 days) required under applicable CDPH and local health department requirements.” Employers will need to review local health department quarantine requirements to determine the quarantine length for employees in those jurisdictions. For example, LA County’s health department guidance still requires a 14-day quarantine. It seems likely that local health departments will revise their guidance to comport with the revised CDPH quarantine guidance, but this will need to be monitored. Sufficed to say, it is virtually impossible for employers to stay on top of, and immediately comply with, all of this ever-changing guidance. Employers should simply do their best to try in good faith to do so.