In this episode of The Workplace podcast, CalChamber employment law expert Matthew Roberts and CalChamber policy advocate Robert Moutrie give an update on the latest COVID-19 workplace safety rules and discuss what employers should watch for in the coming weeks and months.
This podcast was recorded on Dec. 30, 2021. Important updates to the podcast discussion appear in the Editor’s Notes below.
Below is a condensed summary of today’s podcast. To hear the full discussion of each topic, visit the time stamps noted in the article below.
New Isolation, Quarantine Guidelines
Time Discussed: 01:35
On December 27, 2021 the U.S. Centers for Disease Control and Prevention (CDC) released new COVID-19 guidelines on quarantine and isolation periods for asymptomatic cases. Moutrie explains that the timelines have been shortened for asymptomatic cases only and in cases where someone is experiencing symptoms, such as coughing and trouble breathing, then the symptomatic person will still need to wait out through their symptoms. Under the new CDC guidelines, an asymptomatic person who has tested positive (regardless of vaccination status) will need to isolate for five days, and, if no symptoms are present or are resolving after five days, then the person may leave their house as long as they wear a face covering for five additional days.
If a vaccinated person has been exposed to someone with COVID-19 and is asymptomatic, then the person will need to wear a face covering around others for 10 days. If someone is unvaccinated and has been exposed, then the CDC guidelines state that the person has to quarantine for five days and must wear a mask around others for five additional days, Moutrie says.
One big change to highlight: a person is not “vaccinated” if they have not received a booster shot if they qualify for one. A booster is required after 6 months of completing the primary series of the Pfizer or Moderna vaccines; and a booster is required after 2 months of having received the Johnson & Johnson vaccine.
Editor’s Note: On December 30, the California Department of Public Health (CDPH) issued new guidance on quarantine and isolation periods. Please read “New COVID-19 Guidance in 2022” on the Capitol Insider blog for information on the rules California employers will need to follow. On January 4, 2022, the CDC revised their guidelines on quarantine and isolation periods to include a testing component.
Time Discussed: 05:00
Employers should also expect changes happening with the California Division of Occupational Safety and Health (Cal/OSHA) Emergency Temporary Standards (ETS), Moutrie says.
At its December board meeting, Cal/OSHA approved the new version of their emergency regulation. The new rules will treat vaccinated workers more like unvaccinated workers, with requirements for testing vaccinated workers after exposure and changes to post-exposure protocol where vaccinated workers exposed to COVID-19 will need to either be excluded from or practice social distance in the workplace.
Because the current ETS mostly eliminated social distancing rules, these more stringent social distancing rules are something a lot of workplaces are not ready for, so it’s something employers should really look at and prepare for, Moutrie stresses.
Another topic discussed at the ETS meeting is cloth facing coverings. What happened, Roberts asks, and how does it affect the workplace?
Moutrie explains that the CDPH put out a face covering mandate on December 13, 2021 that required face coverings in all indoor public spaces. An FAQ then clarified that the mandate applied to all workplaces where a worker is not truly alone and there are multiple workers around. So, even if a workplace is not open to the public, these rules will still apply. These rules were mainly put in place to prevent winter spread as people went home for the holidays and returned to the workplace, so this face covering mandate applies only through January 15, 2022.
The Cal/OSHA ETS regulations that will come into effect on January 14, 2022 include changes to the definition of what a qualifying face covering is. The rules introduce a new element called a “light test,” which requires that the face cover fabric not let a light pass through to qualify as a mask. This generated a lot of discussion and Moutrie expects an FAQ on it as we head into January because even surgical masks would allow some amount of light to pass through.
Federal Vaccine Mandate
Time Discussed: 11:08
Many employers have expressed confusion over the federal OSHA vaccine mandate and its long journey through the courts over the last couple of months, Roberts says. How does this affect California employers?
Moutrie replies that we had two separate federal vaccine mandates — the 100+ employer mandate and the federal contractor mandate — and they both are tied up in the courts.
The 100+ employer mandate was stayed by the U.S. Court of Appeals for the Fifth Circuit, so it was not being enforced nationwide, but the Sixth Circuit lifted that stay. The U.S. Supreme Court will begin hearing arguments on January 7 and will issue an opinion sometime shortly thereafter. In the meantime, however, the mandate is in effect for certain states, but not for California, he explains. This is because California is a “state plan” and federal OSHA regulations do not immediately apply to us.
Cal/OSHA is planning to vote on the vaccine mandate at its January Standards Board meeting, and if the Supreme Court upholds the federal mandate, Cal/OSHA will likely vote the vaccine mandate into effect in mid-January.
“If the Supreme Court does not uphold it, of course, then that’s off,” Moutrie says. “So, California employers need to keep watching that.”
What Employers Should Expect
Time Discussed: 16:35
Given that Cal/OSHA likely wouldn’t change the federal mandate, what are some things employers can do now to prepare in case the U.S. Supreme Court upholds the federal rule, Roberts asks?
The federal vaccine mandate is a “soft mandate,” requiring either vaccination or weekly testing for unvaccinated employees. If an employer thinks the Supreme Court will uphold this mandate, Moutrie suggests they prepare by thinking about how they will collect information and keep track of who is and is not vaccinated, and how they will provide weekly testing.
Employers can also start considering ways to encourage their staff to take boosters as it’s expected that the federal vaccine mandate and Cal/OSHA will move toward requiring boosters for someone to be considered fully vaccinated.
Employers should keep their eyes open this month as there is going to be a lot of news. Record keeping issues will likely come up at some point in the later term, such as keeping actual proof of vaccination and not self-attestation, Moutrie says.