On January 8, 2022, the Department of Industrial Relations (“DIR”)[1] provided updated guidance concerning isolation and quarantine requirements that apply to employees in employer workplaces. The guidance incorporates a recent California Department of Public Health (“CDPH”) update on isolation and quarantine periods into the Cal/OSHA COVID-19 Emergency Temporary Standard[2] (“ETS”).
Specifically, the DIR provided that the CDPH Guidance[3], which shortened the isolation and quarantine periods for the general public, applies to employers subject to the Cal/OSHA ETS, and to their employees and workplaces.
This bulletin explains the interaction between the CDPH Guidance and the Cal/OSHA ETS and addresses which isolation and quarantine periods now apply to workplaces in California. Please note that there is separate CDPH guidance for K-12 schools that continues to govern students, and another CDPH guidance for employees in healthcare settings, which this bulletin does not address.
Until there are additional changes in the law (which we recognize are occurring frequently), employers should adhere to the isolation and quarantine periods described in this bulletin when there is a COVID-19 case or a close contact exposure in the workplace.
Isolation and Quarantine Periods that Apply to the General Public
The CDPH Guidance establishes isolation[4] and quarantine[5] periods for the general public that are shorter than the comparable periods for employees set forth in the Cal/OSHA ETS. The shorter CDPH periods allow members of the general public to discontinue their isolation and quarantine sooner than employees would be permitted to do so under the Cal/OSHA ETS.
Isolation and Quarantine Periods that Apply to Workplaces
The DIR update clarifies the application of an Executive Order[6] that Governor Newsom issued in December 2020. That Executive Order serves to shorten the isolation and quarantine periods applicable to workplaces under the Cal/OSHA ETS when the CDPH adopts shorter exclusion periods.
The DIR confirmed that the longer exclusion periods set forth in the Cal/OSHA ETS are “suspended to the extent that they exceed” the CDPH recommended isolation and quarantine periods and that the CDPH isolation and quarantine periods now apply to workplaces.
Employers should adhere to the following isolation and quarantine periods, which are also provided for in a chart published by the DIR:
Exclusion Requirements for Employees Who Test Positive for COVID-19 (Isolation)
These isolation requirements apply to all employees, regardless of their vaccination status, previous infection, or present lack of symptoms. The Guidance provides that employees may discontinue isolation and the return to work if they satisfy conditions set forth below:
Expedited return-to-work for employees who are tested and test negative for COVID-19 after diagnosis:
Lengthier exclusion required for employees who are not tested for COVID-19 after diagnosis:
Employers should note that the DIR expressly provides that “[e]mployers may require employees submit to [] testing[10] for COVID-19.”[11] As discussed below, the DIR indicates a preference for antigen, as opposed to polymerase chain reaction (“PCR”), tests for this purpose.
Employers should also note that an employee who has a fever[12] may not discontinue isolation or return to the workplace until the fever resolves.[13]
Employees Who Are Exposed to Someone with COVID-19 (Quarantine)
The following quarantine requirements apply to employees who had a close contact exposure, subject to three potential exceptions described below. These requirements apply regardless of whether an individual was infected with the virus that causes COVID-19 in the preceding 90 days.
Expedited return-to-work for employees who are tested and test negative for COVID-19 after exposure:
As provided above, “[e]mployers may require employees submit to [] testing for COVID-19”[14] in order to facilitate and expedite their return to work.
If an exposed employee tests positive for COVID-19, the employee must follow the isolation requirements outlined above.
If an exposed employee develops symptoms, the employee must be excluded from the workplace pending the results of a test.
Lengthier exclusion required for employees who are not tested for COVID-19 after exposure
Exceptions to the Quarantine Requirement:
There are three exceptions to the quarantine requirement as described below.
First Exception
An employee does not need to quarantine after a close contact exposure if the employee is asymptomatic and satisfies either of the following criteria:
Such an employee must test for COVID-19 on day five (5) following the close contact exposure, and may only continue to work if they receive a negative test result. As mentioned above and discussed below, the DIR indicates a preference for antigen tests in this circumstance.
An employee who tests positive must follow isolation recommendations, as provided above.
If such an employee develops symptoms associated with COVID-19 following the COVID-19 test, they must be excluded from the workplace pending the results of another COVID-19 test.
Second Exception
The second exception to the quarantine requirement applies to employees who have been fully vaccinated and are booster-eligible, but who have not yet received a booster dose.
Such employees do not need to quarantine if they satisfy the following conditions:
Employees who test positive should follow the isolation requirements, as described above.
Employees who begin to experience symptoms associated with COVID-19 should quarantine and be tested for COVID-19 to confirm whether they have contracted the virus that causes COVID-19.
Employers should ensure that employees who use this exception understand that they must be tested for COVID-19 three (3) to five (5) days after the last close contact exposure. If an employee is not willing or able to meet the requirements of the exception, the employer should require that the employee follow the quarantine requirements that apply to employees who are not fully vaccinated.
Third Exception
The third exception was a time-limited one, and actually expires today on January 14, 2022.
Until January 14, an employee did not need to quarantine after a close contact exposure if the employee satisfied the following criteria: (1) the employee was fully vaccinated before the close contact exposure, and (2) the employee is asymptomatic.
Until today, January 14, 2022, this exception applied regardless of whether the employee had received a booster. Now, all employees who have a close contact exposure must quarantine unless they satisfy the criteria set forth in the first or second exceptions, described above.
Additional Considerations for Employers
In terms of the COVID-19 testing required to discontinue isolation and quarantine under the scenarios described herein, the DIR guidance provides that an “antigen test is preferred.”[16]
This recommendation is likely due to the fact antigen tests are not as sensitive as PCR tests, which may continue to produce positive test results after the individual recovered from COVID-19 and the virus no longer transmissible.
Applicability of Local Mandates and Guidance
Employers must review and adhere to any applicable health orders and guidance issued by the local health department.
If a local health order provides isolation or quarantine periods that are longer than those described in this bulletin, the local order will apply and govern the applicable isolation or quarantine period.[17] Several local health departments have already adopted such orders, and employers should review local guidance before adopting and implementing the guidance provided herein.
LCW attorneys are familiar with these requirements and are able to assist employers in these matters.
[1] The Department of Industrial Relations (“DIR”) oversees the Division of Occupational Safety and Health (“DOSH” or “Cal/OSHA”).
[2] 8 C.C.R. §§ 3205, et seq.
[3] In full, the California Department of Public Health Guidance (“CDPH”) Guidance is entitled, Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public (“Guidance”).
[4] The Centers for Disease Control and Prevention (“CDC”) and the CDPH use “isolation” to address situations where a person has, or is likely to have, COVID-19 (positive test, affirmative diagnosis from a health care provider, etc.).
[5] The CDC and CDPH use “quarantine” in reference to close contact exposures – individuals who may not have COVID-19 themselves, but who were exposed to it and who must separate from others.
[6] Paragraph 7 of the Executive Order N-84-20 provides: “The exclusion periods required in California Code of Regulations, Title 8, section 3205(c)(10) and the periods for which a worker shall not return to work specified in section 3205(c)(11) shall be suspended to the extent that they exceed the longer of: (a) Any applicable quarantine or isolation period recommended by the CDPH, including in the December 14, 2020 Updated COVID19 Quarantine Guidelines; or (b) Any applicable quarantine or isolation period recommended or ordered by a local health officer who has jurisdiction over the workplace.”
[7] The DIR states that an “antigen test is preferred” (See COVID-19 Emergency Temporary Standards (“ETS”) Frequently Asked Questions (“FAQs”), “CDPH Isolation and Quarantine,” Tables 1 and 2, available at the following web address: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso (Last updated on January 8, 2022.) This preference may be attributable to the lower sensitivity of antigen test compared to polymerase chain reaction (“PCR”) tests. The DIR has not provided information on whether employers may accept self-administered and self-read COVID-19 tests, which are expressly disallowed under the revised ETS. (See 8 CCR 3205(b)(6)(C), these revised regulations are available at the following web address: https://www.dir.ca.gov/OSHSB/documents/Dec162021-COVID-19-Prevention-Emergency-txtbrdconsider-2nd-Readoption.pdf.)
[8] Employers should check state and local guidance and mandates to determine compliant use of face coverings. Some counties have prescribed certain types of face coverings. Cal/OSHA guidance on face coverings is available here: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#controls. CDPH guidance on face coverings is available here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx.
[9] If an employee’s symptoms other than fever are not resolving, the employee may not return to work until the symptoms are resolving or until after day 10, as measured from the positive test. Employers may require employees to verify that their symptoms have resolved.
[10] See footnote 7. The DIR states that an “antigen test is preferred” (See COVID-19 ETS FAQs, “CDPH Isolation and Quarantine,” Tables 1 and 2, available at the following web address: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso (Last updated on January 6, 2022.)
[11] See DIR COVID-19 FAQs, “CDPH Isolation and Quarantine,” footnote i, https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso
[12] A fever is a measured body temperature of 100.4 degrees Fahrenheit or higher.
[13] A fever resolves when 24 hours have passed with no fever, without the use of fever-reducing medications.
[14] See DIR COVID-19 FAQs, “CDPH Isolation and Quarantine,” footnote i, https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso
[15] A person becomes “eligible” for a booster at different times, depending upon which COVID-19 vaccine the person originally received. The DIR refers to CDC guidance on when a person becomes eligible, available here: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html?s_cid=11706:cdc%20covid%20booster:sem.ga:p:RG:GM:gen:PTN:FY22.
[16] See footnote 7.
[17] See Executive Order N-84-20, paragraph 7.