Cal/OSHA Issues Guidance on Fully Vaccinated Employees

By William J. Kim, Kennell Sambour, Eric Compere, Melissa K. Peters and Krystal Weaver © Littler Mendelson May 11, 2021
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On May 5, the California Division of Occupational Safety and Health—known as Cal/OSHA—issued much-awaited FAQs, which provide clarity on whether employers must continue to exclude fully vaccinated employees from the workplace if they were exposed to a confirmed positive COVID-19 case (at work or otherwise).

Prior to this guidance, fully vaccinated employees in California with exposure were still required to be excluded from the workplace under Cal/OSHA's Emergency Temporary Standards (ETS), but not under U.S. Centers for Disease Control and Prevention (CDC) guidance. This conflict was challenging for many employers because it effectively resulted in the exclusion of workers whose risk of transmission was low according to CDC guidance in order to ensure compliance with the ETS. Such exclusion requirements had onerous implications with continuing supplemental paid leave obligations under SB 95, the Families First Coronavirus Response Act, and the ETS.

Moreover, it was unclear whether Gov. Gavin Newsom's Executive Order N-84-20 (issued on Dec. 14, 2020) was intended to apply to prospective guidance issued by the California Department of Public Health (CDPH) as it related to quarantine and isolation periods for fully vaccinated individuals.

With these new FAQs, Cal/OSHA has answered in the affirmative. Employers in California can now follow CDPH guidance allowing fully vaccinated employees identified as a close contact of a confirmed positive COVID-19 case to remain in the workplace so long as they are asymptomatic.

Employers should be cautious that the newly issued FAQs narrowly apply to quarantine and isolation periods as expressed in the ETS. While the CDC and CDPH have stated that fully vaccinated people can congregate indoors without masks or physical distancing, the CDPH expressly carves out workplace settings, and the ETS requirements related to masks, physical distancing, and testing requirements still remain in effect.

William J. Kim is an attorney with Littler in Seattle. Kennell Sambour and Eric Compere are attorneys with Littler in Los Angeles. Melissa K. Peters is an attorney with Littler in Walnut Creek, Calif. Krystal Weaver is an attorney with Littler in San Diego. © 2021 Littler Mendelson. All rights reserved. Reposted with permission. 

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