CDPH Redefines “Close Contact” and “Infectious Period,” Changing Workplace COVID-19 Prevention Requirements

On June 8, 2022, the California Department of Public Health (“CDPH”) adopted new definitions for two terms that are critical to determining how employers must respond to COVID-19 cases in the workplace: “close contact” and “infectious period.”[1]

The updated definitions will affect employer obligations under both CDPH health orders that use such terms and the Cal/OSHA COVID-19 Emergency Temporary Standard (“ETS”), which relies on these CDPH definitions to establish workplace health and safety obligations.

In order to ensure compliance with applicable health orders and regulations, California employers must adapt their policies and practices concerning workplace COVID-19 exposures. The purpose of this special bulletin is to review the updated definitions, explain the legal implications for employers, and provide guidance as to how employers should respond in order to ensure compliance with the new legal requirements.

Revised Definition of “Close Contact” Focuses on Shared Indoor Airspace

Pursuant to the June 8, 2022 Health Order, CDPH now defines a “close contact” as follows:

[S]omeone sharing the same indoor airspace (e.g., home, clinic waiting room, airplane etc.) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes) during an infected person’s (laboratory-confirmed or a clinical diagnosis) infectious period.

(Emphasis added.)

This definition removes the prior requirement that the contact must be “within six feet” to constitute a “close contact” and replaces that bright-line rule with a more ambiguous one that the individuals “shar[e] the same indoor airspace.” While the new definition “acknowledge[s] that COVID-19 is an airborne disease . . . , rather than one spread by respiratory droplets,”[2] it does not necessarily take into account how employers are to determine which employees share the same airspace in the event of a workplace exposure.

The new definition carries added significance, because the ETS uses the CDPH definition of “close contact”[3] to trigger certain workplace health and safety obligations.

Investigating and Responding to COVID-19 Cases

The most important issue will be how employers identify “close contacts” under the new, expanded, but more ambiguous definition. On June 20, 2022, CDPH provided some guidance to assist employers in this regard.

Updated Approach to Identifying “Close Contacts”

While the revised definition, in combination with regulatory obligations under the ETS, requires that employers exclude “close contacts” who are symptomatic, the CDPH also recommends prioritizing “high-risk contacts” for identification, testing, and potential exclusion. The CDPH provides the following criteria to identify such “high-risk contacts”: (1) the individual’s proximity to the COVID-19 case; (2) the duration or intensity of the exposure; and (3) any heightened risk of severe illness or death the individual might have from exposure.[4]

The CDPH’s “high-risk contact” framework exposes employers to potential liability under federal and state laws that protect the confidentiality of employee medical information. The federal Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) both prohibit medical inquiries unless the employer can demonstrate that the inquiry is job-related and consistent with business necessity.[5] Additionally, the California Confidentiality of Medical Information Act (“CMIA”) prohibits use or disclosure of employee medical information unless one of a few very narrow exceptions applies or the employee gives written, CMIA-compliant permission.[6]

It can be difficult and time-consuming to use or access employee medical information correctly, and the penalties for wrongful access, use, or disclosure are severe. Rather than risk issues with employee medical information, we generally advise that employers adopt the following approach in order to ensure compliance with the new definition and the associated ETS exclusion requirements:

1. Pursuant to Labor Code section 6409.6, inform all employees in the workplace of the exposure;[7]
2. Inform such employees that, should they present a symptom or symptoms associated with COVID-19 subsequent to the exposure, they should contact Human Resources for additional instruction;[8]
3. Identify rooms or areas within the larger workplace where the COVID-19 case was present and where there may be “shared airspace” with other employees. These spaces may include, but are not limited to, waiting rooms, bathrooms, breakrooms, eating areas, open work areas, and rooms with open doors[9] that connect to such spaces. While “transient exposures” in hallways may not independently total 15 minutes, employers should identify such spaces for the cumulative effect the exposures in such areas may have on employees;[10] and
4. Investigate employees’ potential exposures to the COVID-19 case in order to determine whether the employee “shar[ed] the same indoor airspace” as the COVID-19 case for 15 minutes or more.[11] If the employee meets the new definition of “close contacts” and the employee is symptomatic, the employer must instruct the symptomatic “close contact” to leave the workplace[12] and not return until satisfying the ETS return-to-work requirements.[13]

We believe the above approach will account for individuals considered “high-risk contacts” by the CDPH, as well as anyone else who qualifies as a “close contact” under the new definition. This approach is meant to ensure that the employer has discharged both its statutory and regulatory obligations. Employers should note that future orders or guidance from the CDPH might further change the approach to workplace “close contacts.”

“Infectious Period” Now Aligns with Shortened Isolation and Quarantine Periods

The CDPH Health Order also revises the definition of “infectious period” as follows:

• For symptomatic infected persons, the period starts 2 days before the infected person had any symptoms and lasts through Day 10 after symptoms first appeared (or through Days 5-10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
• For asymptomatic infected persons, the period starts 2 days before the positive specimen collection date and lasts through Day 10 after positive specimen collection date (or through Days 5-10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

Previously, the ETS definition of “infectious period” applied. The ETS defines “infectious period” almost identically to the new CDPH definition, except that the ETS did not account for an early end to the infectious period if the COVID-19 case tests negative on or after Day 5 and meets the other requirements listed in the CDPH definition. Now, because the CDPH has defined “infectious period” in a Health Officer Order, the ETS will follow the CDPH’s definition.[14]

Changes to the definition of “infectious period” bring it in line with current CDPH and Cal/OSHA ETS return-to-work requirements. Therefore, the updated definition should not result in any significant changes to how employers handle COVID-19 cases, workplace exclusion, or return to work.

LCW attorneys are monitoring changes to COVID-19-related requirements and stand ready to assist employers with COVID-19 response and prevention.

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[1] CDPH, “Beyond the Blueprint” (June 8, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Beyond-Blueprint.aspx> [State Health Officer Order].

[2] CDPH, “Isolation and Quarantine Q&A” (June 20, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Isolation-Quarantine-QA.aspx>.

[3] 8 C.C.R. § 3205(b)(1) (stating if “close contact is defined by regulation or order of the CDPH[, then] the CDPH definition shall apply”).

[4] The CDPH has also stated a “high-risk contact” may include a person “who may experience severe illness if they become infected with COVID-19 or for whom the transmission potential is high (high intensity/duration of indoor exposure).” CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public” (June 9, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx>.

[5] 42 U.S.C. § 12112(d)(4)(A) [ADA]; Gov. Code § 12940(f)(1) [FEHA].

[6] Civil Code §§ 56, et seq.

[7] 8 C.C.R. § 3205(c)(3)(B)3.

[8] 8 C.C.R. § 3205(c)(1)(A).

[9] NOTE: Current CDPH guidance does not clearly describe which rooms or areas that are connected to a “shared airspace” would also be considered part of the shared airspace. Accordingly, the most cautious approach is to treat any connected rooms or areas as part of the “shared airspace” until the CDPH publishes further guidance that clarifies the issue.

[10] CDPH, “Isolation and Quarantine Q&A” (June 20, 2022).

[11] CDPH, “Beyond the Blueprint” (June 8, 2022); CDPH, “Isolation and Quarantine Q&A” (June 20, 2022).

[12] 8 C.C.R. § 3205(c)(9)(B); CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public” (June 9, 2022) [Table 2: Close Contacts – General Public].

[13] Currently, COVID-19 cases who were asymptomatic or whose symptoms are resolving may return to work if they test negative at least five days after the date that symptoms first presented or they took the specimen that resulted in the first positive test, and if the individual has gone at least 24 hours without a fever of 100.4 degrees Fahrenheit or higher without the use of fever-reducing medication. 8 C.C.R. § 3205(c)(10)(A). If symptoms are not resolving, the COVID-19 cases cannot return to work until at least 24 hours have passed without a fever of 100.4 degrees Fahrenheit or higher without the use of fever-reducing medication, the symptoms are resolving, and at least 10 days have passed since the date that symptoms first presented or they took the specimen that resulted in the first positive test. 8 C.C.R. § 3205(c)(10)(B). NOTE: ETS return-to-work requirements currently mirror the CDPH’s isolation and quarantine guidance. However, if the CDPH advises a shorter isolation or quarantine period, that shorter period would control so long as Executive Order N-84-20 is in effect.

[14] 8 C.C.R. § 3205(b)(9) (“‘Infectious period’ means the following time period, unless otherwise defined by CDPH regulation or order, in which case the CDPH definition shall apply.”).