California Dept. of Public Health Amends COVID-19 “Close Contact” Definition for Large Open Area Workplaces

Since November 2020, the California Occupational Safety and Health Administration (Cal/OSHA)’s COVID-19 Emergency Temporary Standards (ETS) have imposed significant obligations on California employers.  The May 2022 readoption of the ETS extended the required COVID-19 policies and protocols for California employers through December 31, 2022.  For background on the ETS and their prior readoptions, please visit our COVID-19 publications page.

On June 9, 2022, the Cal. Dept. of Public Health (CDPH) issued an order, incorporated by law into the Cal/OSHA ETS, expansively defining “close contact” COVID-19 cases 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.

This broad “sharing the same space” definition of a “close contact” replaced the prior definition in the Cal/OSHA ETS which limited close contacts to those “within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.” This “sharing the same space” definition created particular challenges to employers as to how to identify “close contacts” in their large open-floor-plan offices, manufacturing facilities, and the like.  

Based on updated information as to the manner in which COVID-19 spreads—COVID-19 is considered an airborne disease, rather than one spread by respiratory droplets—the CDPH issued its October 14, 2022 Order to distinguish between higher “direct” risks of exposure in smaller spaces, from lower “indirect” risks in larger indoor spaces.  Per the October 14, 2022 Order, CDPH “further clarifie[d] its definition of a ‘close contact’ to provide entities strategies to prioritize response to potential exposures and acknowledge the differences in risk from direct and indirect exposures.” The Order also recognized that COVID-19 infection can be determined not only by laboratory or clinical diagnosis, but also antigen (at home) COVID-19 tests. 

Per the October 14, 2022 Order, “close contact” now means the following:

• In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane, etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
• In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

Spaces separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces under the October 14, 2022 Order.

These new definitions automatically became part of the Cal/OSHA ETS and Cal/OSHA has already updated its FAQs to reflect the new definition of “close contact” for these larger workspaces.  Consequently, who is a “close contact” under the Cal/OSHA ETS depends upon the size of the employers’ indoor workspaces.  

The Cal/OSHA ETS are set to expire on December 31, 2022, and adoption of the controversial proposed semi-permanent COVID-19 regulations, which would remain in effect for two years, remains uncertain: The Cal/OSHA Board tabled a September 15, 2022 vote on proposed COVID-19 regulations and its last scheduled public meeting in 2022 is December 15, 2022.   

For now, all employers with workspaces in California should assess whether their indoor spaces are considered “large” as it may significantly impact their COVID-19 prevention obligations. California employers would also be well served to review their written COVID-19 Prevention Programs to ensure compliance as the requirements have evolved since the Cal/OSHA ETS were first adopted.  

The lawyers at RJO are here to assist you in these endeavors and help you navigate California’s unique COVID-19 prevention regulations, recommendations and guidance.