Revision of two key definitions within Cal/OSHA’s COVID-19 ETS: “Close Contact” and “Infectious Period”

in Employment Law, In The News, Home, Event

July 12, 2022

The evolution of Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS) continues.  It is important to know that two of the original definitions within the ETS, the meanings of “close contact” and “infectious period”, are now substantively different than before.  Why did these definitions change? The answer lies within the key incorporation language built in at the end of both ETS definitions which defers to the California Department of Public Health (CDPH) definitions should the agency promulgate language different than what is set forth in the ETS (“unless otherwise defined by CDPH regulation or order, in which case the CDPH definition shall apply.”).  And on June 8, 2022, the CDPH did in fact do just that, with its “State Public Health Officer Order” revising the definitions. 

In its FAQs, Cal/OSHA confirms that the CDPH definitions trump the earlier ETS definitions:

Q: What impact does the CDPH’s updated definitions for “close contact” and “infectious period” have on the 3rd readoption of the ETS?

A: CDPH’s new definitions now apply to the ETS because the 3rd readoption states that its definitions of “close contact” and “infectious period” will change if CDPH changes its definition of those terms by regulation or order. The CDPH definitions can be found in the “State Public Health Officer Order.”
Let’s now take a look and compare the definitions. 

Old, pre-June 8, 2022, definitions (per ETS):
“Close contact” was defined in the ETS as being within “six feet” of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the infectious period.

“Infectious period” was defined as: (A) For COVID-19 cases who develop symptoms, from two days before they first develop symptoms until all of the following are true: it has been 10 days since symptoms first appeared; 24 hours have passed with no fever, without the use of fever-reducing medications; and symptoms have improved. (B) For COVID-19 cases who never develop symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

New definitions effective June 8, 2022 (per CDPH):
Close contact is defined as someone 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.
 
Infectious period is defined as:
  • For symptomatic infected persons, 2 days before the infected person had any symptoms 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, OR
  • For asymptomatic infected persons, 2 days before the positive specimen collection date 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.
For the purposes of identifying close contacts and exposures, infected persons who test negative on or after Day 5 and end isolation are no longer considered to be within their infectious period. Such persons should continue to follow CDPH isolation recommendations, including wearing a well-fitting face mask through Day 10.
 
The new “close contact” definition thus implicates such COVID-19 workplace issues as (1) contact tracing procedures and determining potential close contacts; (2) notification requirements; (3) the scope of employees who must be offered testing and who must wear a mask following exposure; (4) potential exclusion and availability of exclusion pay; (5) who must be excluded in the event of a minor outbreak if they do not test; (6) who must quarantine in employer-provided housing.

Employers should ensure these new definitions are incorporated into their COVID-19 Prevention Programs (CPP) and/or Illness and Injury Prevention Plans as needed. And this might also be a good time for employers to review their CPPs as a whole to make sure they are in line with the third ETS revision.   
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