By Conn Maciel Carey’s COVID-19 Task Force
The California Department of Public Health (CDPH) issued new guidance yesterday – COVID-19 Public Health Recommendations for Fully Vaccinated People – that affects some aspects of Cal/OSHA’s COVID-19 ETS. For purposes of this discussion, people are considered fully vaccinated for COVID-19 either two weeks or more after they receive the second dose in a two-dose series (Pfizer-BioNTech or Moderna), or two weeks of more after they received a single-dose vaccine (Johnson and Johnson/Janssen).
Relevant to application of Cal/OSHA’s COVID-19 ETS requirements to fully vaccinated workers, the new CDPH guidance provides that in a workplace setting, fully vaccinated workers are no longer required to quarantine following a known exposure at work, so long as the exposed vaccinated worker remains asymptomatic. But that is as far as the guidance goes in providing relief under Cal/OSHA’s COVID-19 ETS for vaccinated workers.
Specifically, employers must still follow all other requirements of the ETS with respect to fully vaccinated workers. Regardless of vaccination status, an exposed fully vaccinated worker or a fully vaccinated worker who is part of a group of workers covered by an outbreak determination must still be provided testing as before, and the physical distancing and face covering requirements of the ETS continue to apply just the same to vaccinated workers. This conflicts with the balance of the CDPH guidance (and recent CDC guidance) that allows fully vaccinated people to spend time with other fully vaccinated people, including indoors, without wearing masks or physical distancing. These eased restrictions, unfortunately, apply only in personal settings, not in the workplace.
Note this new CDPH guidance does not apply to healthcare settings.
Even though this is technically just guidance, it does have immediate effect on how employers may comply with Cal/OSHA’s COVID-19 ETS. Recall that Governor Newsom had to issue Executive Order N-84-20 in December 2020 just days after Cal/OSHA issued its COVID-19 ETS in order to address CDPH’s new guidance about shorter quarantine periods than conflicted with that related requirements in Cal/OSHA’s ETS that had just issued days earlier. That EO suspended the ETS quarantine requirements to the extent they exceeded or conflicted with any applicable quarantine requirements set by CDPH guidance. That EO remains in effect today, which means the ETS can be read today as incorporating not only the shorter quarantine periods set in December, but also this new guidance about suspending quarantine requirements for fully vaccinated workers.
As we have discussed recently, Cal/OSHA is also working on a formal update to its COVID-19 ETS, which may be published very soon, and addressed through the next meeting of the Cal/OSH Standards Board next month.
Conn Maciel Carey LLP