On January 8, 2022, the California Department of Public Health (“CDPH”) issued an updated All Facilities Letter (“AFL”)[1] to hospitals and skilled nursing facilities (“SNFs”) advising them of the temporary removal of the isolation and quarantine requirements for certain health care personnel following a COVID-19 diagnosis or close contact exposure. CDPH then expanded the scope of the AFL’s quarantine guidance to cover emergency medical services personnel.[2]
The changes in the AFL apply from January 8, 2022, to February 1, 2022, and remove the otherwise applicable exclusion requirements for covered personnel so long as such employees are asymptomatic.
The purpose of this bulletin is to advise public agencies of the changes to the required exclusion periods for these employees, so that public agencies may revise their policies and protocol as circumstances demand in order to maintain staffing and continue to provide essential health care and emergency medical services.
Prior Isolation and Quarantine Requirements
Prior to the issuance of the updated CDPH AFL, health care and emergency medical services personnel were subject to the exclusion requirements set forth in an earlier AFL that aligned with then operative guidance from the Centers for Disease Control and Prevention (“CDC”).
That AFL. 21.08.6, provided reduced isolation periods and testing considerations for COVID-19 positive health care professionals and provided for return to work requirements under both “routine” and “critical staffing shortage” scenarios.
Updated Isolation and Quarantine Requirements for Health Care Personnel
The updated AFL replaces the previously operative guidance and permits the employers of covered personnel to undertake the following steps necessary in order to maintain sufficient staffing and continue to provide essential services:
The CDPH provides that, if such personnel continue to work, they must wear an N95 respirator in order to limit the further spread of the virus that causes COVID-19. If possible, the CDPH also recommends that such personnel be assigned to provide care to patients who are COVID-19 positive.
Updated Quarantine Requirements for Emergency Service Personnel
In addition to covering health care personnel, the CDPH also provides that emergency medical services personnel are “permitted to follow Guidance on Quarantine for Health Care Personnel in [the] AFL.”[3]
This instruction limits the scope of coverage under the AFL for such employees to those circumstances where an employee, such as a fire fighter, has a close contact exposure to a COVID-19 case, but not to those situations where the employee has actually been diagnosed with COVID-19.
As a result, emergency medical service provider agencies, such as fire departments, only possess the authority to allow emergency medical service personnel who have had a close contact exposure and are asymptomatic to return to work immediately and without testing. Such agencies are not authorized to allow personnel who test positive for COVID-19 to return to work without first satisfying the conditions set forth in the December 30 CDPH Guidance.
Liability Considerations
Before adopting the AFL standards in order to immediately return employees to the workplace who have COVID-19 or have had a close contact exposure, employers should assess the potential liability associated with such a decision. Given that these employees will be providing medical care to individuals, some of whom may be immunocompromised or susceptible to a serious case of COVID-19, there are significant legal risks in discontinuing isolation and quarantine periods without first testing employees for COVID-19.
Employers should evaluate the relative risks of such a decision and potentially consider other return to work protocols, such as returning employees to work after reduced isolations and quarantines periods, or, for health care personnel, allowing only employees who have had close contact exposures, but not a positive COVID-19 diagnosis, to return to work immediately. Alternative return to work protocol may permit sufficient staffing in order for the employer to continue providing essential services while also reducing the health and medical risks to patients under their care and also their own legal exposure.
Bargaining Obligations for Employers with Represented Workforces
An employer that suspends isolation or quarantine requirements for its employees and requires that they remain at work is changing a term and condition of such employees’ employment. As such, the employer must bargain the change in policy and practice with the employee organizations that represent such employees before the employer can adopt and implement the decision. Therefore, prior to adopting such a policy, the employer must provide notice and an opportunity to bargain the change to the employee organizations that represents the employees affected by the decision.[4]
For public employers, critical staffing shortages and the related threat to the continuity of essential medical services may satisfy the conditions necessary for the employer to invoke and use the emergency exception to the Meyers-Milias-Brown Act (“MMBA”).[5] While this theory is untested and unsettled in the current context, successful application of the emergency exception as determined by the Public Employment Relations Board (“PERB”) would allow such an employer to adopt the policy and implement the return to work requirements without first negotiating the decision or its effects. Before an employer invokes the emergency exception to the MMBA in order to adopt such a policy, the employer should consult with counsel in order to prepare for a possible challenge to the employer’s authority to invoke the emergency exception and require employees to remain at work.
Liebert Cassidy Whitmore attorneys are well-versed in the requirements set forth in the AFL, the exclusion requirements that would otherwise apply to such employees, as well as the use of the emergency exception. We are able to assist public agencies and non-profit clients exercise their authority concerning the isolation or quarantine periods for covered employees.
[1] All Facilities Letter (“AFL”) 21-08.7.
[2] On January 8, 2022, the California Department of Public Health (“CDPH”) extended the scope of the “Guidance on Quarantine” under the AFL 21-08.7 to cover “emergency medical services personnel.” (See CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public,” available at the following web address: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx.)
[3] See CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public,” providing that “Emergency Medical Services personnel … are permitted to follow the Guidance on Quarantine for Health Care Personnel in AFL 21-08.7,” available at the following web address: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx.
[4] Gov. Code § 3504.5(a).
[5] Gov. Code § 3504.5(b).