New year, new Cal/OSHA COVID-19 regulations. The non-emergency COVID-19 prevention regulations (“New Regulations”) still await the Office of Administrative Law’s approval, but will likely take effect in the next few weeks. Employers eagerly await the end of the Emergency Temporary Standard’s (“ETS”) more burdensome requirements, such as exclusion pay and reporting outbreaks to local health departments. But the New Regulations also carry burdensome changes and unanswered questions that are sure to give employers headaches.
1. The “close contact” definition still makes little sense and is not practical
On October 13, 2022, the California Department of Public Health (“CDPH”) updated its definition of a COVID-19 “close contact.” At the time, Cal/OSHA clarified that the new definition also applied to the ETS. Now, the New Regulations explicitly incorporate the definition. The new close contact definition retains the “within six feet of the infected person for a cumulative total of 15 minutes or more” test for shared indoor airspaces over 400,000 cubic feet, but uses a new “sharing the same indoor airspace for a cumulative total of 15 minutes or more” test for airspaces of 400,000 cubic feet or less. Notably, most office floors are less than 400,000 cubic feet and therefore the sharing the same indoor airspace test applies.
While simple on its face, on a practical level this new test means that unless an infected person goes into his/her/their private office, shuts the door, and doesn’t come out for more than 15 minutes that day, everyone on the floor is a close contact if they spend a cumulative total of 15+ minutes outside their own private office at the same time as the infected person. So employees on completely different sides of the office floor – who do not interact or even see each other – could still be close contacts.
Given the practical difficulties of timing / monitoring employees’ movements, some employers might find it simpler to treat everyone on the entire office floor as a close contact. But this means additional costs and administrative headaches because of the testing, face covering, and notice requirements (more on those below).
2. Despite AB 2693’s new worksite posting option for COVID-19 exposure notices, the New Regulations continue to require individualized close contact notices
On September 29, Governor Gavin Newsom signed AB 2693 into law, revising and extending the existing obligation for employers to notify workers of potential exposure to COVID-19 in the workplace. As of January 1, 2023, California employers must continue to notify employees of COVID-19 exposure in the workplace, but can satisfy that notification obligation by prominently displaying a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted.
As we noted in our previous blog post, the New Regulation’s close contact notification requirement does not incorporate Labor Code section 6409.6 (the new worksite posting option). In other words, while employers can satisfy their COVID-19 worksite exposure notice obligation by posting a notice, they still need to individually notify all employees and contractors who had a close contact. And as discussed above, for office floors of 400,000 cubic feet or less, employers face an expanded close contact population. Employers should be prepared to send plenty of close contact notices.
3. Important questions remain unanswered
Cal/OSHA has promised, but not yet published, FAQs addressing the New Regulations. In the meantime, many unanswered questions remain.
- Partially enclosed spaces: The New Regulations note that offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces. But the New Regulations don’t say if this applies to spaces that have three floor to ceiling walls, but an open fourth side, or that do not have a closing door or divider, so that air effectively can move from one room to the other. Most lunch rooms / cafeterias don’t have doors. And if they do, they are usually left open.
- Open office doors: Must the office doors be closed to count as separate airspaces? If the door is left open for 15+ minutes, does that office become part of the common area shared airspace?
- Impact of face coverings: Like the ETS, the New Regulations limit the size of the “exposed group” (and by extension, an outbreak determination) when employees wear face coverings in common areas. Does this exception also apply to the New Regulations’ close contact definition? Common sense says it should, but a plain reading of the regulations suggests it doesn’t.
- Hallways: For the purpose of determining the “exposed group,” the New Regulations don’t consider a place where people momentarily pass through, without congregating, a work location, working area, or common area. Can employers also exclude these areas from the “same indoor airspace” for the purpose of determining close contacts? The regulations suggest not, but why the inconsistency?
Hopefully Cal/OSHA’s FAQs will provide some clarity. In the meantime, for help with the Cal/OSHA COVID-19 Non-Emergency Regulations or any of your other employment needs, contact your Baker McKenzie employment attorney.