While COVID-19 guidance, orders and regulatory changes haven’t been as frequent as they were in the past two years, employers should review a couple of recent updates, including clarification of “indoor air space” and new limits to an employer’s ability to require viral COVID-19 testing.
First, the California Division of Occupational Safety and Health (Cal/OSHA) updated its COVID-19 FAQs to address recent changes to the definition of “close contact.” As previously reported, in early June 2022, the California Department of Public Health (CDPH) issued an order updating its definitions of “close contact” and “infectious period,” both of which apply to employer’s obligations under Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS).
Moving away from the longstanding six-foot rule for close contact, the CDPH order redefined the term 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.” However, the broad “same indoor airspace” terminology raised questions for employers.
Cal/OSHA just updated its COVID-19 ETS FAQ page to try to clarify what “shared indoor airspace” means, saying it may be analyzed in several ways:
“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. For example, there may be a close contact between employees in an open-floor-plan plant even though the two persons worked on separate machines, one as a maintenance worker and one as a packer on an adjacent line. Proximity and length of exposure are key to this determination.”
“There may be both large indoor spaces as well as smaller spaces within them. 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.”
Though it doesn’t answer every question, this new Cal/OSHA guidance is helpful. Regarding larger indoor settings, like warehouses and retail stores, Cal/OSHA notes that they “may” constitute shared indoor space, but they’re not automatically deemed such — it’s a case-by-case determination, dependent on the circumstances of the space and, in particular, the proximity and length of exposure. While some ambiguity remains in the definition, the new guidance gives employers something to work with as they address the new “close contact” standard. Employers should continue to consult with their legal counsel on this issue, especially if they are utilizing larger indoor spaces.
At the federal level, the Equal Employment Opportunity Commission (EEOC) recently updated some of the FAQs in its COVID-19 guidance. Notably, the EEOC clarifies that an employer’s ability to require viral COVID-19 testing as a mandatory workplace screening measure is not unlimited. Employers that want to screen for COVID-19 using testing must meet the Americans with Disability Act’s (ADA) “business necessity” standard based on relevant facts.
In the early days of the pandemic, the EEOC took the position that testing always met the standard. But now, the EEOC states that, going forward, employers will need to assess whether current circumstances justify viral screening. Possible factors to consider include community transmission levels, vaccination status and the degree to which breakthrough infections are possible, types of contact employees have with one another, and the transmission and severity of circulating variants. In making these assessments, the EEOC directs employers to the U.S. Centers for Disease Control and Prevention (CDC) guidance.
Employers should review the latest updates from Cal/OSHA and the EEOC as they continue to address COVID-19 in the workplace.