The Waters Become Murkier: CDPH and EEOC Release Broader Standards for COVID-19 Exposure and Testing

New “Close Contact” Standard

In June 2022, the California Department of Public Health (CDPH) issued an order revising the definition of “close contact.” Under the CDPH order, close contact was defined 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.” This created confusion because of the lack of a definition of “same indoor airspace” which is certainly much broader than the 6 feet-15 minutes-24 hour definition the entire nation had been using up until that point.  Compounding the problem was Cal/OSHA’s recent revision to its Emergency Temporary Standard which now defers to the CDPH definition of “close contact.” So regardless of the ETS’s definition of Close Contact, employers must follow the more vague definition located in the CDPH order.

Last week, Cal/OSHA updated its FAQ for the ETS to address the close contact determination as it relates to the ETS. The Cal/OSHA FAQ states that a shared indoor airspace may be analyzed in several ways as follows:

• Smaller spaces contained within a large indoor space that are separated by floor-to-ceiling walls are not part of the same indoor airspace as the large indoor space. These smaller spaces may include suites, rooms, waiting areas, bathrooms, or break or eating areas. In these settings, an employer would determine close contacts by evaluating which employees shared that smaller space with a COVID-19 case for 15 minutes or more over a 24-hour period.
• Larger indoor settings that are not divided into smaller spaces that are separated by floor-to-ceiling walls may constitute a shared indoor airspace. These settings may include open-floor-plan offices, warehouses, retail stores, or manufacturing or food-processing facilities. In those cases, employers must evaluate whether employees shared the same indoor airspace on a case-by-case basis, considering the duration and proximity of the contact, regardless of the specific task of the employees.
• Employers with both large indoor spaces and smaller indoor spaces within the large indoor spaces must evaluate close contacts in both types of spaces. For example, in an open-floor-plan office or warehouse (large indoor space) with a bathroom and break area (smaller spaces), the employer must evaluate both types of spaces to determine who had a close contact.

This guidance still leaves much more for interpretation than the previous standard which applied a 6 foot requirement for any close contact.   Employers are now forced to conduct their own interpretation of the employee’s close contact to determine what response to take to the exposure.  While this guidance is still new, employers may opt to be conservative in how they evaluate close contacts. At the very least, we suggest updating your COVID-19 protocols to incorporate this new standard.

Updated EEOC Vaccination and Testing Guidance

The EEOC recently updated its Technical Assistance Q&A's as they relate to COVID-19 testing and evaluating vaccination exemptions.  The EEOC’s prior guidance stated that conducting mandatory worksite COVID-19 testing always met the Americans with Disabilities Act (“ADA”) standard (that any mandatory medical test be "job-related and consistent with business necessity").

The updated guidance has retracted that statement and now requires that employers undertake individualized assessments to determine whether testing an employee for COVID-19 is job-related and consistent with business necessity. While there is no clear definition of what meets this standard, the EEOC did list the following "possible considerations" employers may use when making the assessment:

• level of community transmission;
• types of contact employees may have with others in the workplace or elsewhere that they are required to perform work (e.g., working with medically vulnerable individuals);
• vaccination status of employees;
• degree to which breakthrough infections are possible for employees who are 'up to date' on vaccinations;
• ease of transmissibility of the current variant(s);
• possible severity of illness from the current variant(s);
• accuracy and speed of processing for different types of COVID-19 viral tests; and
• and potential impact on operations if an employee enters the workplace with COVID-19.

The updated guidance clarifies that this analysis only applies to COVID-19 viral testing and not to antibody testing (which the EEOC states is not permissible).  Antibody testing only tests whether someone has had COVID-19 in the past and is not an accurate measure of whether an employee currently has COVID-19 and can infect others.

While this guidance may seem to lessen employer’s ability to test, the EEOC states that mandatory COVID-19 testing will meet the "business necessity" standard when it is consistent with current guidance from the CDC, Food and Drug Administration and/or state or local public health authorities but notes that each of those entities may periodically revise and update its guidance based on new information and changing conditions. Employers must remain vigilant of such changes.

With respect to vaccination exemptions, the EEOC guidance states that an employer can only decline a medical exemption request under the ADA when they can demonstrate a direct threat. This means that the employer must make a medical judgment that the unvaccinated employee’s presence in the workplace constitutes an imminent threat of death or serious illness to themselves or others. In order to make this assessment, the EEOC says that employers should conduct a careful assessment of the individual’s medical condition, along with current community spread conditions and the risks of exposure posed by the employee’s job tasks. The employer should also consider potential accommodations such as enhanced PPE, ventilation, or allowing the employee to telecommute. Again there is no defined standard of what specific situations create a “direct threat”.  We encourage all employers to reach out to legal counsel when making these assessments.