On June 8, 2022, the California Department of Public Health (CDPH) changed the definition of a COVID-19 “close contact” to someone sharing the same “indoor airspace” (instead of the prior standard of being within 6 feet) for a cumulative total of at least 15 minutes over a 24-hour period during the infectious period of a person with diagnosed or laboratory-confirmed COVID-19. The changes were addressed in a State Public Health Officer Order (Beyond the Blueprint) on June 8, 2022, updated CDPH guidance on isolation and quarantine on June 9, 2022, and updated CDPH isolation and quarantine Q&As on June 20, 2022.
Unfortunately, CDPH provides very little information to help employers assess what constitutes an “indoor airspace,” and Cal/OSHA is entirely silent in its COVID-19 Emergency Temporary Standards (ETS) FAQs (updated on June 21, 2022). Here’s what we know from CDPH:
- Three examples of an indoor airspace are a home, a clinic waiting room, or an airplane.
- Even when an indoor airspace is large, it may nonetheless create close contacts.
- An exposed person is at a higher risk of infection within an indoor airspace “based on their proximity to the [COVID-19] case in the setting, the duration or intensity of their exposure, and/or their greater risk of severe illness or death from an exposure.” (Comment from Vigilant: An exposure will be more intense if employees are shouting to be heard over loud machinery or breathing hard due to physical exertion.)
- When assessing potential exposure, you may identify any smaller spaces within the larger indoor setting. “For example, individual rooms, waiting areas, bathrooms, or break or eating areas within larger areas could be identified as the shared airspace area.”
- “When a larger indoor space cannot be easily divided into smaller discrete spaces, then close contacts may be determined based on proximity to the positive case….”
- “Viral particles are less likely to concentrate in larger indoor spaces (e.g., department store or indoor shopping mall, or warehouse, gymnasium) so only those closer to the infectious person or in a more enclosed shared airspace would be considered at great enough risk of becoming infected to be called a close contact.”
Tips: Unless Cal/OSHA steps in with a clarification, this means employers no longer have an objective distance standard to determine who was a “close contact.” It seems clear that you would need to consider everyone to be a close contact if they’re within the same break room, conference room, or other defined room for at least 15 minutes with a COVID-19 case, even if they’re more than 6 feet apart. In a large room such as a manufacturing center or warehouse, you seem to have some flexibility in considering physical proximity when identifying close contacts.
Keep in mind that the consequences of having a close contact at work today are fairly limited under Cal/OSHA’s current ETS, because quarantine due to exposure is no longer required except in certain high-risk workplaces. If you learn that a COVID-19 case was present in the workplace during their infectious period, you have two levels of obligation:
- Exposed group: You must give notice of the potential exposure within one business day (without revealing the identity of the infected person) to the “exposed group,” which generally means all employees at a work location, working area, or a common area at work; and
- Close contacts: For employees within that exposed group who had a “close contact” at work, you must offer free COVID-19 testing during their work hours (except to “returned cases”) and explain available benefits. “Returned cases” are employees who don’t develop any COVID-19 symptoms after returning to work, during the 90-day period after developing symptoms or testing positive for COVID-19. You must also investigate whether any workplace conditions could have contributed to the exposure and consider improved preventive measures going forward.
CDPH says any individual who has a “close contact” (regardless of whether it occurred at work) should test as soon as possible to determine infection status, and (if negative) test again within 3-5 days after exposure, to determine whether they have COVID-19. They should also wear a well-fitting mask for 10 days and self-monitor for symptoms.
Note that because the new definition of “close contact” depends on being in an indoor airspace, you don’t need to examine any outdoor work exposures, even if employees are working shoulder to shoulder. However the federal Centers for Disease Control (CDC) definition of close contact doesn’t distinguish between indoor and outdoor spaces. The CDPH order takes precedence over the CDC guidelines, but as an employer, you have the power to apply more stringent standards if you wish. From an employee protection standpoint, it may be reasonable to go ahead and apply a 6-foot, 15-minute (or longer) rule to your outdoor workers.
Need help? For questions about identifying and following up with close contacts in California, contact your Vigilant Law Group employment attorney. For questions regarding compliance with Cal/OSHA rules, contact your Vigilant safety professional. Also see our Legal Guide, At a Glance: COVID-19 Compliance in California.
