New CDC Guidance, Proposed Updates To Emergency Temporary Standards, And Continued Immigration Flexibility
While some of us may have thought COVID-19 would be temporary, we now know it is here to stay. Yesterday, the CDC released new guidance on what to do after being exposed to someone with COVID-19. Additionally, Cal/OSHA is set to meet on September 15, 2022, in a public hearing to discuss and vote on updates to its COVID-19 Emergency Temporary Standards (“ETS”) ranging from an updated definition of close contact to new outbreak standards. If adopted, these updates will become part of the COVID-19 standards that employers will have to implement in the workplace.
Additionally, the U.S. Citizen and Immigration Services (“USCIS”) has announced additional flexibility for employers given delays in processing and the proliferation of remote work assignments. Given the numerous agencies issuing guidance and ever changing standards, it is important for employers to continue to stay on top of the current guidance to take advantage of it benefits and avoid any pitfalls.
CDC Releases Updated Testing and Isolation Guidance, But the ETS is Still the Rule for California Employers
Yesterday, the CDC published updated guidance regarding when people should test and/or isolate after they are exposed to someone with COVID-19. The updated guidance states that isolation is no longer required for any individuals after they have been exposed unless they begin to exhibit symptoms of COVID-19 or if they later test positive. This is true even if the exposed person is not up to date on their COVID-19 vaccinations or have not been vaccinated.
The guidance makes another significant change by stating that once a person is exposed they should wear a face covering around others for the next ten days and take a COVID-19 test on the fifth day after the exposure or as soon as symptoms develop. Prior to this guidance, unvaccinated individuals had to immediately isolate after an exposure to someone with COVID-19. There is no change to the guidance that if the employees starts showing symptoms or tests positive, they must immediately get tested for COVID-19 and isolate for up to 10 days.
This change is brings the CDC in alignment with to the recent changes to the California Department of Public Health (“CDPH”) guidance which have applied to employers in California since June. Under the CDPH guidance, employees who have been exposed to a COVID-19 case should wear a mask for the next 10 days and test within 3-5 days after the exposure. The employee must test and stay home as soon as symptoms develop or as soon as they test positive.
This guidance highlights the different information employers are presented with when deciding how to respond to COVID-19 cases in the workplace. If an employer had followed the CDC guidance prior to yesterday they would not have complied with the CDPH standards applicable to them. This serves as a reminder that California employers should review and defer to the Cal/OSHA ETS and applicable CDPH guidance when developing their COVID-19 response procedures.
Proposed Revisions to ETS
The Cal/OSHA Standards Board is set to hold a public hearing on September 15, 2022 to discuss proposed revisions to the ETS. The Standards Board has proposed several updates, changes, and improvements to the ETS which will likely go into effect on by the end of the year. A few of the more significant proposed changes are summarized here:
- The proposed amendments to the ETS will update the term “close contact” to reflect the California Department of Public Health’s (CDPH) earlier revision, discussed in our prior alert. The new definition would mean shared indoor space for a cumulative 15 minutes or more over a 24-hour period during the infectious period. However, this definition is effectively already the standard as the current ETS incorporates this updated definition which was introduced in a previous CDPH order. The proposed revision will only serve to make that clear.
- The term “exposed group” expands the definition of common area to include employer-provided transportation or employer-provided housing. Currently the exposed group definition only applies to employees locates in brick and mortar locations of the employer.
- The proposed amendments to the ETS will confirm that employers have two options when creating their COVID-19 Prevention Plan, either: (1) incorporate their written COVID-19 procedures into their written Injury and Illness Prevention Plan or (2) adopt a stand-alone document. Prior guidance indicated that the Prevention Plan must be a separate document.
We will continue to keep employers updated by issuing another Alert after the CAL/OSHA Standards Board votes to incorporate these amendments into to the ETS. Many of the changes will likely require updates to employers COVID-19 Prevention Plan so be sure to set a reminder for September 16thto check on the updated ETS.
Immigration Flexibility
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, through October 31, 2022 due to the continuing effects of COVID-19. The guidance states that If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the requirement of physical inspection I-9 documents until the employee undertakes non-remote employment or the extended authorization not requirement physical inspection ends. While this authorization will live on for a few more months, it is important to remember that employees must work exclusively in a remote setting. If they report to an office location, they will no longer qualify and the I-9 documents must be physically inspected.
In further news, USCIS announced that it would indefinitely allow documents to be submitted with an electronically reproduced original signature. This means that a document may be scanned, faxed, photocopied, or similarly reproduced, provided that the copy must be of an original document containing an original handwritten signature. Electronic signatures like DocuSign will still not be accepted. Individuals or entities who submit documents with an electronically reproduced original signature must retain the original “wet signature” documents, as the agency may, at any time, request an original document. The guidance warns that any failure to provide the original documents may negatively impact case adjudication. This guidance provides flexibility for remote employees and removes the headache and risk of mailing original documents.
Stradling Has Resources To Help You Stay Compliant
To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you want to make sure you are in compliance with the applicable industry guidelines.
Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.
