On October 13th, The California Department of Public Health (CDPH) and California Division of Occupational Safety and Health (Cal/OSHA) made significant changes to the state’s definition of “close contact,” and to the potential two-year extension of California’s COVID-19 regulation that all employers must implement. The CDPH changed the definition of “close contact” via an immediately effective order, which will change enforcement for both large and small workplaces in California.
CURRENT VS. THE CHANGE
- Current Definition
Originally “close contact” was defined by CDPH and Cal/OSHA as any person “sharing the same indoor airspace” as an infected person for 15 minutes.
- The New Definition
California workplaces will be separated by their cubic footage. Workplaces larger than 400,000 cubic feet will utilize the original definition of close contact (6 feet/15 minutes), whereas airspaces smaller than 400,000 cubic feet will keep the more recent definition of anyone sharing the same “indoor airspace.” CDPH’s order expressly notes that where “floor-to-ceiling walls” separate portions of a workplace, those areas must be counted separately for the purposes of determining whether the workplace is 400,000 cubic feet.
WHY IT MATTERS
Extremely big workplaces—like California’s largest warehouses, airplane hangars, or manufacturing spaces—can now return to the much more practical standard of 6 feet/15 minutes to identify close contacts. This change reduces the scope of obligations toward testing and masking after exposures in the workplace. The employer must look at whether each area inside that workplace meets the requirement or if it is a separate airspace due to walls or similar barriers. For that reason, employers close to the 400,000 cubic feet limit will need to do some careful measuring — and work with counsel — to identify whether their workspace qualifies, or whether it is actually separate spaces and therefore must continue under the present “indoor airspace” definition.
Cal/OSHA just released their draft two-year extension of the COVID-19 regulation — which will be voted on in December 2022. On October 14, Cal/OSHA issued a 15-day change notice and made considerable changes to the draft regulation’s text. Though the full impact of these changes is still being analyzed, the most important to employers appear to be:
- Incorporation of the new “close contact” definition based on the size of the workplace (see above) into the draft.
- Easing the threshold to end an “outbreak”— now two cases will be the threshold to continue outbreak precautions.
- Changes to statutory notice requirements— with 2022’s AB 2963 revised changing notice requirements in the workplace, the regulation is being adjusted to match.