By Conn Maciel Carey’s COVID-19 Task Force
As the number of vaccinated workers continues to rise, and despite guidance from the CDC lifting certain restrictions against fully vaccinated individuals, Cal/OSHA’s current official position, as reflected in its COVID-19 ETS FAQs, is that “[f]or now, all prevention measures must continue to be implemented” for vaccinated persons. The same set of FAQs, however, also informs us that “[t]he impact of vaccines will likely be addressed in a future revision to the ETS.” See Cal/OSHA COVID-19 ETS FAQs “Vaccines” FAQ #1.
Following the February 11, 12, and 16 Cal/OSHA COVID-19 ETS Advisory Committee meetings, in which CMC participated on behalf of our California Employers COVID-19 Prevention Coalition, Deputy Chief of Cal/OSHA Research and Standards shared an updated version of a “Discussion Draft” of the ETS that reflects changes under consideration by the agency. The issue of how vaccinated employees should be treated under the ETS was a major topic of discussion during the Advisory Committee meetings, and potential changes to the ETS around that are reflected in notes in the Discussion Draft.
While the notes are not necessarily proposed amended regulatory text (rather, they largely incorporate committee members’ feedback ), reading the tea leaves from the Advisory Committee meetings, it is clear that Cal/OSHA acknowledges the interest and scientific basis for handling requirements in the ETS for quarantine (and perhaps also outbreak and close contact testing) differently for vaccinated individuals, and is seriously considering changes in the ETS to address that.
The notes in Cal/OSHA’s Discussion Draft referencing updated CDS guidance, which may be considered by Cal/OSHA in an updated ETS, provide:
“Vaccinated persons should continue to follow current guidance to protect themselves and others, including wearing a mask, staying at least 6 feet away from others, avoiding crowds, avoiding poorly ventilated spaces, covering coughs and sneezes, washing hands often, following CDC travel guidance, and following any applicable workplace or school guidance, including guidance related to personal protective equipment use or SARS-CoV-2 testing. However, vaccinated persons with an exposure to someone with suspected or confirmed COVID-19 are not required to quarantine if they meet all of the following criteria:
- Are fully vaccinated (i.e., ≥2 weeks following receipt of the second dose in a 2-dose series, or ≥2 weeks following receipt of one dose of a single-dose vaccine)[;]
- Are within 3 months following receipt of the last dose in the series[;]
- Have remained asymptomatic since the current COVID-19 exposure[.]
Persons who do not meet all 3 of the above criteria should continue to follow current quarantine guidance after exposure to someone with suspected or confirmed COVID-19.”
Another way this lag in Cal/OSHA’s COVID-19 ETS about treatment of vaccinated workers may be addressed is by Executive Order (like the reduction in quarantine time for asymptomatic close contacts). At the ABA OSH Law Subcommittee Midwinter Meeting a couple of weeks ago, a Cal/OSHA representative indicated that an Executive Order may be considered to address exceptions to various elements of the ETS for fully vaccinated individuals.
Where that leaves us now is not entirely clear. The regulatory text does not provide any carve-out for vaccinated employees, and the current FAQs similarly do not recognize any exemption for vaccinated employees from quarantine or any other ETS requirements. But Cal/OSHA has publicly acknowledged in a Discussion Draft of the ETS the scientific consensus that quarantine should not be required for fully vaccinated workers who experience a close contact exposure. Our advice, unfortunately, is that for the time being, until Cal/OSHA officially makes changes to the ETS or updates its FAQs, or until Governor Newsom issues an Executive Order on this subject, employers face regulatory risk by not implementing all prevention measures, including quarantine, even for vaccinated persons.
Conn Maciel Carey LLP