This article was reviewed January 2021 and the information is up-to-date.

 

On December 14, 2020, Governor Gavin Newsom issued Executive Order N-84-20 (the “Order”), addressing a number of issues related to COVID-19 and the present public health emergency.

In this bulletin, we address several issues of significant importance to employers, including revisions to the quarantine period provided in the newly adopted Cal/OSHA regulation, the requirement that “emergency response workers” observe modified quarantine requirements, and the suspension of certain rules limiting the use of retired annuitants to “mitigate the effects of the COVID-19 pandemic.”

Revisions to Cal/OSHA Quarantine Period

The Order revises the regulatory provision requiring that employees quarantine for 14 days following “close contact” exposure[1], aligning the Cal/OSHA quarantine standard with that articulated in an updated California Department of Public Health (“CDPH”) guidance released in conjunction with the Order.

Cal/OSHA previously required employers to exclude from the workplace any employee who had “close contact” exposure to someone with COVID-19 until the employee quarantined for 14 days following that contact.[2] That requirement, which took effect on November 30, almost immediately came into conflict with more permissive guidance issued by the Centers for Disease Control and Prevention (“CDC”) on December 2 and by CDPH on December 7.

The Order suspends the more restrictive quarantine requirements adopted by Cal/OSHA, bringing the regulation into compliance with the updated December 14 CDPH guidance. As a result, following a “close contact” exposure, an employer must exclude employees from the workplace according to the following framework:

  • An employee may discontinue quarantine and report back to the workplace after the tenth day following “close contact” exposure, so long as the employee did not present any symptoms associated with COVID-19 during the quarantine period;
  • During a critical staffing shortage[3], certain employees, including health care workers, emergency response worker and certain social service workers[4], may discontinue quarantine and report back to the workplace after the seventh day following “close contact” exposure if: (1) the employee did not present any symptoms associated with COVID-19 during the quarantine period; (2) the employee received a PCR[5] COVID-19 test no earlier than the fifth day following the “close contact” exposure; and (3) that test produced a negative result.

The CDPH guidance further provides that all asymptomatic employees who discontinue the quarantine prior to 14 days must observe the following:

  • Adhere strictly to all recommended non-pharmaceutical interventions, including wearing face coverings and observing physical distancing; and
  • Self-monitor for symptoms associated with COVID-19, and if such symptoms occur, immediately self-isolate, contact the local health department or their health care provider, and seek testing.

Finally, the essential employees, described above, who return to the workplace after the seventh day following the “close contact” exposure must wear a surgical face mask while at work and should continue to use a face covering when outside the home through the 14th day after the “close contact” exposure.

Emergency Responders Now Covered by the Quarantine Guidance

A significant unanswered question related to the newly adopted Cal/OSHA regulations concerns whether the regulations cover safety employees, including police and firefighters, or whether such employees are exempt by virtue of the fact that they may be subject to the Cal/OSHA regulation related to aerosol transmissible diseases (“ATD”)[6].

While the Order does not directly address the general question concerning the scope of the Cal/OSHA regulations, it does clarify that “emergency response workers” are subject to the updated quarantine guidance and revised return to work criteria described above, and that these employees are not entirely exempt from the regulatory requirements because they are subject to the Cal/OSHA ATD regulation.[7]

While Cal/OSHA has still not provided specific guidance on the scope of its newly adopted regulation and whether it covers all safety employees, the Order and the updated CDPH guidance confirm that “emergency response workers” are, at a minimum, subject to a quarantine should they have a “close contact” exposure.

Suspension of Certain Limitations Regarding the Use Retired Annuitants

The Order also suspends certain limitations regarding the use of retired annuitants where the annuitant is or will be engaged in “mitigating the effects of the COVID-19 pandemic.” This change will make it easier for employers to use retired annuitants during the present public health emergency.

Under Government Code section 21221, subsection (h), a governing body may temporarily appoint a CalPERS retired annuitant to a vacant position during either: (1) the recruitment for a permanent appointment in a position deemed by the governing body to require specialized skills; or (2) in an emergency to prevent stoppage of public business. However, the Government Code generally limits governing bodies in making such appointments by providing that the governing body may only appoint an individual to a position once and that the annuitant’s appointment cannot exceed 960 hours in a fiscal year.

The Order suspends the “reinstatement and work hour limitations… [including, in particular, the limitation that a retiree may only be appointed to a vacant position once]” set forth at Government Code section 21221, subsection (h), if the governing body determines the retired annuitant is or will be engaged in “mitigating the effects of the COVID-19 pandemic.” While this term is not defined, and it is not clear whether the Order also suspends the requirement that retired annuitants be appointed to a vacant position “during recruitment for a permanent appointment”, the Order provides some additional discretion to employers to use retired annuitants who have specialized skills or whose services are needed in order to ensure the continuity of public business.

Liebert Cassidy Whitmore attorneys are available to assist employers that have any questions about the new Executive Order and CDPH COVID-19 Guidance or the related changes they entail.

 

[1] While Cal/OSHA uses the term “COVID-19 exposure”, the CDPH uses the term “close contact”. We elect to use “close contact” because it is more descriptive and less likely to be confused with potential COVID-19 exposures. Nevertheless, both terms – COVID-19 exposure and close contact exposure – mean being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the COVID-19 positive individual’s “infectious period.” The “infectious period” means the following time periods: (1) For persons who develop COVID-19 symptoms: from two (2) days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or (2) For persons who test positive who never develop COVID-19 symptoms: from two (2) days before until ten days after the specimen for their first (1st) positive test for COVID-19 was collected.

[2] 8 C.C.R § 3205(c)(10).  Additionally, for public school districts, the CDPH had issued guidance specifically for all students, teachers, and staff with the same return to work criteria.  (https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Schools%20Reopening%20Recommendations.pdf)

[3] A “critical staffing shortage” exists when “there are not enough staff to provide safe patient care, essential critical infrastructure workers … ” See CDPH “COVID-19 Quarantine Guidance”, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Quarantine.aspx (Last updated on December 14, 2020.)

[4] Only social service workers who “work face to face with clients in the child welfare system or in assisted living facilities” are covered. See CDPH “COVID-19 Quarantine Guidance”, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Quarantine.aspx (Last updated on December 14, 2020.)

[5] PCR refers to polymerase chain reaction, which is the methodology that certain COVID-19 tests employ to identify the presence of the virus’s genetic material in a specimen. PCR tests are regarded as more accurate than alternative tests.

[6] 8 C.C.R. § 5199; See also 8 C.C.R. § 3205(a)(1)(A)(3) [exempting “employees when covered by [Title 8] section 5199.”

[7] The Cal/OSHA regulation exempts three (3) groups of employees from Title 8 of the California Code of Regulations Section 3205. (See 8 C.C.R. § 3205(a)(1)(A)-(C).) One of the three groups exempted are “employees when covered by [Title 8 CCR] section 5199.” (8 C.C.R. § 3205(a)(1)(C).) Section 5199 covers “[p]aramedic and emergency medical services including these services when provided by firefighters and other emergency responders.” ((8 C.C.R. § 5199(a)(1)(A)(8).) Section 5199 also covers to “[p]olice services, provided during transport or detention of persons reasonably anticipated to be cases or suspected cases of aerosol transmissible diseases; and police services provided in conjunction with health care or public health operations.” Thus, firefighters and police may, depending on the circumstances of the duties performed, be exempt from Section 3205 because they would be covered by Section 5199.