On December 27, 2021, the Centers for Disease Control and Prevention (“CDC”) shortened its recommended isolation and quarantine periods for people who test positive for, or are exposed to COVID-19.[1] The reason for the change, according to the CDC, is that most transmissions of SARS-CoV-2 appear to occur early in the course of illness, generally from 1-2 days before symptoms appear and 2-3 days after symptoms have appeared. This bulletin describes the new CDC guidance but also explains that California employers still must follow the California Division of Occupational Safety and Health (“Cal/OSHA”) COVID-19 Prevention Emergency Temporary Standard (“ETS”) and any state or local protocols applicable to employment sectors with separate guidance, such as healthcare and education.
CDC Isolation Recommendation for People Who Test Positive
The CDC now recommends that people who test positive for COVID-19 stay home (isolate) for only 5 days. If, after 5 days of isolation, the individual is asymptomatic or symptoms are resolving, the individual may leave isolation but should continue to wear a mask for another 5 days.
CDC Quarantine Recommendation for People Who Are Exposed
The CDC recommends a similar quarantine procedure for individuals who were exposed to COVID-19, with two variations based on vaccination history.
For individuals exposed to COVID-19 who (1) were fully vaccinated with Pfizer or Moderna more than 6 months ago and have not received a booster, (2) were fully vaccinated with Johnson & Johnson more than 2 months ago and have not received a booster, or (3) are not fully vaccinated, such individuals should quarantine for 5 days following exposure. If possible, they should take a COVID-19 test on the fifth day. If no symptoms occur, or if the individual tests negative, then the individual may leave quarantine but should wear a mask around others for five additional days. If the individual experiences symptoms, the CDC recommends staying home and testing to confirm whether the symptoms are attributable to COVID-19.
For individuals exposed to COVID-19 who (1) received the full Pfizer or Moderna vaccine within the last 6 months, (2) received the Johnson & Johnson vaccine within the last 2 months, or (3) received a booster shot, such individuals should wear a mask around others for at least 10 days following exposure. If possible, they should take a COVID-19 test on the fifth day. Individuals who test positive should stay home and follow the isolation guidance.
Impact on California Employers
Currently, the Cal/OSHA Emergency Temporary Standard (“ETS”) generally requires workers who qualify as COVID-19 cases[2] or have a close contact exposure to COVID-19 to isolate or quarantine for a minimum of 10 days.[3] California employers must follow the Cal/OSHA ETS unless they are exempt from its requirements under one of the narrow exceptions.[4] In contrast, the updated CDC guidance is advisory, not mandatory. Therefore, the new CDC guidance does not override the requirements in the Cal/OSHA ETS.
On December 16, 2021, the California Occupational Safety & Health Standards Board (“OSHSB”) made minor revisions[5] to the Cal/OSHA ETS. Cal/OSHA states the amended ETS goes into effect on January 14, 2022.[6] Issued prior to the new CDC guidance, some of the amendments to the Cal/OSHA ETS extend the required isolation and quarantine periods. A more detailed explanation of the changes is available online here.
California COVID Prevention Requirements Are Likely to Change in the Near Future
Although the new CDC guidance on isolation and quarantine periods conflicts with the current Cal/OSHA ETS, California tends to follow CDC guidance. The California Department of Public Health (“CDPH”) indicated that it would soon adopt the CDC guidance for the state. If California employers could take advantage of shorter quarantine and isolation periods, it would lessen the risk of staffing problems and quicken the return of employees who are excluded from the workplace due to COVID-19.
Following its December 16, 2021 amendments to the ETS, Cal/OSHA published a Fact Sheet[7] that states, “The period of time before an employee can return to work after ‘close contact’ or COVID-19 illness has been revised to be consistent with current CDPH guidelines. These time frames will automatically update if CDPH updates their guidelines.” The Fact Sheet also suggests that, in the future, the CDPH may adopt the CDC’s shortened quarantine and isolation periods.
These issues, and other possible revisions to the Cal/OSHA ETS, may be addressed at the next meeting of the OSHSB, which is scheduled for January 20, 2022. In the interim, the CDPH or local health officers may adopt orders or guidance recommending shorter isolation or quarantine periods. Cal/OSHA may take the position that such state or local orders supersede the lengthier isolation or quarantine periods provided for in the Cal/OSHA ETS in the jurisdiction where such orders or guidance is adopted. However, until such action is taken at the state or local level, the longer isolation and quarantine provisions in the Cal/OSHA ETS continue to apply.
Overall, California employers should expect further changes to COVID-19 guidance and legal requirements. LCW attorneys are monitoring all COVID-19-related developments closely. Readers can follow our Special Bulletins for updates.
[1] The updated CDC guidance is available here: https://www.cdc.gov/media/releases/2021/s1227-isolation-quarantine-guidance.html.
[2] For isolation purposes, a “COVID-19 case” includes a person who tests positive for COVID-19, receives a COVID-19 diagnosis from a licensed health care professional, or is ordered to isolate by a state or local health official. 8 C.C.R. § 3205(b)(3).
[3] 8 C.C.R. § 3205(c)(9), (10).
[4] The ETS does not apply to (1) work locations with one employee who does not have contact with other persons; (2) employees working from home; (3) employees with occupational exposure as defined by 8 C.C.R. § 5199, when they are covered by the requirements of that section; or (4) employees teleworking from a location of the employee’s choice, which is not under the control of the employer. 8 C.C.R. § 3205(a)(1).
[5] The News Release on the December 16, 2021 OSHSB vote to revise the Cal/OSHA COVID-19 ETS is available here: https://www.dir.ca.gov/DIRNews/2021/2021-124.html. The materials considered at the December 16, 2021 meeting, including the newly adopted revised ETS, are available here: https://www.dir.ca.gov/oshsb/COVID-19-Prevention-Emergency.html.
[6] See https://www.dir.ca.gov/dosh/coronavirus/ETS.html.
[7] The Fact Sheet is available here: https://www.dir.ca.gov/dosh/dosh_publications/COVIDOnePageFS-12-16-2021.pdf.