On December 16, 2021, the Cal/OSHA Standards Board adopted the third version of the Cal/OSHA ETS with new exclusion and return to work requirements for COVID-19 cases and close contacts.

On December 30, 2021, the California Department of Public Health (CDPH) issued new guidance for Isolation and Quarantine for the General Public. This new guidance contradicted some of the Cal/OSHA ETS requirements for exclusion from the workplace creating confusion among employers.

The main contradiction was that under the Cal/OSHA ETS, employees who test positive and/or who have had a close contact with a COVID-19 case are required to quarantine for 10 days. Under the revised CDPH guidance such individuals may generally end quarantine or isolation after 5 days. Adding to the confusion was the reference within the CDPH guidance that “employers are subject to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS)…”

To resolve the confusion, Cal/OSHA has published a “fact sheet” entitled “COVID-19 ETS What Employers Need to Know About the December 16 Standards.”  In this sheet, Cal/OSHA states: “The period of time before an employee can return to work after “close contact” or COVID-19 illness has been revised to be consistent with current CDPH guidelines. These time frames will automatically update if CDPH updates their guidelines pursuant to the Governor’s executive order.”

Cal/OSHA appears to be referring to an Executive Order issued by Governor Newsom in 2020, that states that when the Cal/OSHA ETS exclusion period exceeds the CDPH or local quarantine or isolation period, the CDPH or local order applies. That same Order also requires that Cal/OSHA “promptly provide public notice of the change, including through posting a notice on its web page regarding the ETS,” which appears to be satisfied by the fact sheet mentioned above.

As such, quarantine and isolation periods that employers should now follow under CDPH guidance are as follows:

An individual who tests positive for COVID-19

· Individuals should stay home for at least 5 days.

· Isolation can end after day 5 if symptoms are not present or are resolving and a diagnostic specimen collected on day 5 or later tests negative.

· If unable to test or choosing not to test, and symptoms are not present or are resolving, isolation can end after day 10.

· If fever is present, isolation should be continued until fever resolves.

· If symptoms, other than fever, are not resolving continue to isolate until symptoms are resolving or until after day 10.

· Wear a well-fitting mask around others for a total of 10 days, especially in indoor settings.

Unvaccinated individuals and vaccinated individuals who are eligible for a booster but have not received the booster who are exposed to a COVID-19 Positive Individual

· Individuals should stay home for at least 5 days, after their last contact with a person who has COVID-19.

· Individuals should test on day 5.

· Quarantine can end after day 5 if symptoms are not present and a diagnostic specimen collected on day 5 or later tests negative.

· If unable to test or choosing not to test, and symptoms are not present, quarantine can end after day 10.

· Wear a well-fitting mask around others for a total of 10 days, especially in indoor settings.

· If testing positive, follow isolation recommendations for positive individuals.

· If symptoms develop, the individual should test and stay home.

Vaccinated individuals who have received booster or are not booster eligible who are exposed to a COVID-19 Positive Individual

· Individuals do not need to stay home.

· Individuals should test on day 5.

· Wear a well-fitting mask around others for 10 days, especially in indoor settings

· If testing positive, follow isolation recommendations above.

· If symptoms develop, test and stay home.

Unfortunately, CDPH guidance may be revised again to align with the new Centers for Disease Control (CDC) guidance updated on January 4, 2022. As such, in the coming month, employers may need to be flexible in updating policies and procedures to align with the latest requirements as the situation with COVID-19 continues to be fluid.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Photo of Sean Paisan Sean Paisan

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations…

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations, and fighting citations. Additionally, Sean also assists employers in data privacy and traditional employment matters, including litigation and counseling.

Sean’s first exposure to OSHA regulations occurred during his undergraduate studies while working for a construction company that helped build Disney’s California Adventure. After attending law school and working for the Los Angeles County District Attorney’s Office and the United States Attorney’s Office, Sean moved into private practice, where he focused on general liability matters, including serious injuries and fatalities. Through this experience, Sean became very knowledgeable on the myriad of Cal/OSHA regulations imposed on businesses, especially in the construction, manufacturing, and healthcare industries, and the consequences for violations of those regulations. From there, Sean became OSHA 30 certified and began assisting employers with all workplace safety matters, from compliance, to investigations and inspections, to the appeals of citations in California, Arizona, Washington, and Hawaii.

Throughout his career, Sean has been called upon to try cases that cannot be settled. He has handled trials in the United States District Court, California Superior Court, Cal/OSHA Appeals Board, Workers Compensation Appeals Board, and the US Department of Labor OALJ, as well as binding arbitrations. Sean has tried cases involving the following subjects: general employment, wrongful death, premises liability, unfair competition (B&P § 17200), false advertising (Lanham Act), misappropriation of trade secret, restrictive covenants, and whistleblower (AIR21).

In addition to his trial experience, he is routinely called on to assist his clients with workplace crises such as catastrophic injuries, fatalities, data breaches, and ransomware incidents. Drawing on his years of in both civil and criminal law, Sean’s unique background allows him to anticipate and proactively manage issues, rather than simply reacting to requests and inquiries by investigating agencies such as law enforcement, OSHA, Cal/OSHA, California Bureau of Investigations (BOI), Federal Aviation Administration (FAA), National Transportation Safety Board (NTSB), as well as opposing counsel in litigation matters.

In addition to his litigation experience, Sean has earned the CIPP/US credential through the International Association of Privacy Professionals (IAPP). He helps organizations manage rapidly evolving privacy threats and mitigate the potential loss and misuse of information assets. He has an in-depth understanding of how privacy laws can impact business operations. These laws include the Health Insurance Portability and Accountability Act (HIPAA), Federal Trade Commission Act (FTC Act), Health Information Technology for Economic and Clinical Health Act (HITECH), Genetic Information Nondiscrimination Act (GINA), Fair Credit Reporting Act (FCRA), Gramm-Leach-Bliley Act (GLBA), Fair and Accurate Credit Transaction Act (FACTA), Dodd-Frank Wall Street Reform and Consumer Protection Act, California Financial Information Privacy Act, Family Educational Rights and Privacy Act (FERPA), Telemarketing Sales Rule, Telephone Consumer Protection Act (TCPA), Junk Fax Prevention Act, Controlling Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), Cable Communications Policy Act, Video Privacy Protection Act, Children’s Online Privacy Protection Act (COPPA), California Online Privacy Protection Act (CalOPPA), California Consumer Privacy Act (CCPA), and California Privacy Rights Act (CPRA). With respect to laws affecting the ability of the government to obtain information, Sean can assist employers in understanding their obligations under the Federal Wiretap Act, Electronic Communications Privacy Act (ECPA), Communications Assistance for Law Enforcement Act (CALEA), Right to Financial Privacy Act, Privacy Protection Act, Foreign Intelligence Surveillance Act (FISA), and USA PATRIOT Act.

Before becoming an attorney, Sean earned his bachelor’s degree in accounting from the University of Southern California, where he also played varsity ice hockey in the ACHA. When not practicing law, Sean enjoys spending time with his wife and three young children, playing adult league ice hockey, mountain biking, and motorsports.