On October 13, 2022, the California Department of Public Health (CDPH) issued an order effective October 14, 2022, updating the definition of close contact under the Third Revised COVID Emergency Temporary Standard and providing “strategies to prioritize response to potential exposures.”

In its prior order of June 8, 2022, the CDPH broadened the definition of close contact when it replaced the familiar “within six feet” delimitation for determining a close contact and announced that a person was a close contact if they shared the same airspace as a positive case for 15 minutes within a 24-hour period. Since then, employers, particularly those with large open workspaces, have been faced with the unenviable task of operationalizing the new definition.

The current order appears to seek a middle ground between the two concepts (within six feet vs. sharing the same airspace) by making the two definitions applicable depending on the size of the workplace measured in cubic feet (calculated as square footage multiplied by ceiling height):

Close contact means the following:

• In indoor spaces 400,000 or fewer cubic feet per floor (such as a home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person's (confirmed by COVID-19 test or clinical diagnosis) infectious period.

• In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food-processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person's infectious period.

Pursuant to the new order, larger workplaces defined to be greater than 400,000 cubic square feet are to apply the “within six feet” definition and smaller workplaces the “sharing same indoor air space” iteration of the rule. 

Compliance is not straightforward, however, as the order goes on to require that areas that are separated by floor-to-ceiling walls must be considered distinct indoor airspaces:

Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.

The practical effect of this additional requirement is to subject large worksites to two sets of rules depending on whether the larger space is further compartmentalized by floor-to-ceiling walls. For example, large warehouses which might otherwise have seen the new update as a relief, now must contend with applying two separate rules within their worksite—within six feet except when in a smaller room within the facility, at which point the air space definition applies.  It is no longer only a matter of how close someone is to other people at the worksite, but also where they were within the worksite. Merely asking employees to identity people with whom they were within six feet may not be sufficient as employers at larger worksites will have to further determine where people were located when they interacted. It also leaves open the question of what to do when each rule applies to the same employee within a 24-hour period.  Should time someone shares airspace with for less than 15 minutes be added to the time spent within six feet of other persons to reach a cumulative total of 15 exposed minutes?

Cal/OSHA issued a FAQ the same day, which adopted the rule and reiterated the requirements without further guidance. 

Revised Proposal for Non-Emergency COVID Standard

On October 13, 2022, the California Occupational Safety & Health Standards Board published a final proposed version of Cal/OSHA’s proposed non-emergency, two-year COVID-19 Standard and commenced a 15-day comment period, which will end at 5:00 p.m. on October 31, 2022.  The revised proposed standard considers some of the comments taken at the September 15, 2022, public meeting; comments are to be restricted to the changes made since September 15. Once the comment period ends, the proposed standard will be scheduled for adoption at a future meeting.

The proposed standard as revised, most notably:

• Incorporates the CDPH’s new size-based definition of close contact.

• Removes the requirement that employees be masked for one of the exceptions to the definition of exposed group to apply. Previously, places where persons momentarily pass through without congregating were not considered a “work location, working area, or common area at work,” if everyone was wearing face coverings. The change now reflects the reality that masking is no longer in place or required—and such locations are now excluded regardless of whether everyone is masked.

• Changes the definition of returned case to shorten the applicable period from 90 days after an initial symptom onset/positive test to 30 days. Accordingly, employees who have recovered from COVID-19 will be excluded from applicable COVID-19 testing requirements for the shorter period.

• Requires that employers develop, implement, and maintain effective methods to prevent COVID-19 transmission for indoor workplaces, which includes one of three identified methods to improve ventilation. The previous draft required that employers merely evaluate whether ventilation was adequate.  Now employers are required to either maximize the supply of outside air, employ the highest level of filtration efficiency compatible with existing mechanical ventilation systems, and/or use HEPA filtration units.

• Removes the requirement to keep a record of close contacts identified by the employer after a COVID-19 case in the worksite.

• Allows employers to exit outbreak procedures when there is one or fewer new COVID-19 cases in a 14-day period. The previous rule required outbreak rules to continue until there were no new cases within the relevant period.

It is anticipated that the modified final text will be discussed at the upcoming meeting of the Cal/OSHA Standards Board in October and voted upon either at its November or December meeting, in order to become effective on January 1, 2023, after the expiration of the current temporary standard (the CA ETS).  Littler will continue to monitor this active area.  Employers should consult with their employment counsel regarding ongoing developments and how they may affect any possible changes to their own workplace safety plans.