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  • Kevin Cleveland and Hannah Moon

Updated "Close Contact" Definition as It Relates to COVID-19 ETS

We wanted to pass along the following message from the California Chamber of Commerce and make sure that you were all aware of the fact that Cal/OSHA recently confirmed that the new California Department of Public Health (CDPH) guidance saying that “close contact,” for their purposes, automatically changed the definition for “close contacts” under the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS). The new definition changes the requirement for being a “close contact” from within 6 feet for more than 15 minutes without a mask in the prior 24 hours to anyone who shared “the same indoor space” with a COVID-19 positive person for fifteen minutes without a mask in the prior 24 hours. As a result, when evaluating close contacts under the ETS, you must use the far less precise, far more confusing, far more all-encompassing measure of the “same indoor space” for 15 minutes. Below is additional information from the California Chamber of Commerce. Please update your policies accordingly and be aware that, as the California Chamber of Commerce points out, this definition change affects who has to be offered COVID-19 testing, who has to be notified of an exposure/outbreak, and who must be excluded from the workplace under Cal/OSHA’s ETS. From the California Chamber of Commerce: Happy Friday. Many of you have reached out to me regarding the recent change to the COVID-19 ETS's definition of "close contacts". Attached is a comment letter seeking clarification on this point, and I will need your input/response by next Tuesday’s COB to be included. For those of you who don't know: the recent change shifted us from using the long-standing "six foot/fifteen minutes" rule to define close contacts to now considering anyone who shared "the same indoor space" with a COVID-19 positive person for fifteen minutes to be a close contact. This change is effective already, based on a June 8th order from CDPH. (The relevant order is available here, and Cal/OSHA confirmed its applicability in FAQ's, stating "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.") The implications for this change are very significant for California workplaces. Who qualifies as a close contact shapes testing, notice, and exclusion under the ETS - meaning employers will need to potentially revisit all of those policies for their facilities ... particularly for larger facilities, where more employees may share the same "indoor airspace". Cal/OSHA has proposed new permanent regulations which would replace the current ETS. You can find the proposed permanent regulations here. We will provide a more in-depth breakdown of how the permanent regulations differ from the ETS once a final draft is circulated prior to passage. Right now, it is too likely to change for an in-depth analysis to be truly beneficial. However, we do think that if you are part of any organization which lobbies or has political power, it may be worth seeing what you can do to limit the effect of a more permanent regulation as this regulation will be permanent and may serve as the blueprint for handling future infectious outbreaks in the workplace. If you have any questions regarding the revised “close contact” definition and the logistics of updating your policies as a result, please contact the experts at Young, Cohen & Durrett, LLP at (916) 569-1700.

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