Seyfarth Synopsis: On June 20, 2023, the California Department of Public Health (CDPH) updated its guidance to local health departments on the definition of a COVID-19 outbreak. The new definition changes the timeframe for counting COVID-19 cases that make up an outbreak from 14 to 7 days. The CDPH change necessitates that the definition of an outbreak for purposes of Cal/OSHA’s non-emergency COVID-19 standard also changes. Now, an employer need only implement the more stringent outbreak provisions of the COVID-19 standard if there have been at least three COVID-19 cases within an exposed group during a 7 day period.

At this stage in the COVID-19 pandemic, and under the more relaxed Cal/OSHA COVID-19 non-emergency standard that went into effect earlier this year, most California employers have a smoothly running COVID-19 prevention program in place. But the prospect of an “outbreak” still causes dread among employers.

The outbreak provisions under the new standard require implementation of various COVID-19 mitigation protocols that are costly and challenging to administer, and that may cause extreme resistance in the employee population. In addition, the analysis of whether an “outbreak” exists, and which employees are subject to the stricter protocols (the “exposed group”—essentially people in the presence of a COVID-19 case anywhere on the premises during their infectious period), is confusing.

Since the early days of the pandemic, Cal/OSHA’s regulations have required outbreak protocols when there have been three or more COVID-19 cases within an exposed group who visited the workplace during their infectious period at any time during a 14-day period. However, the current Cal/OSHA standard was written to be automatically updated to reflect CDPH outbreak changes.

What Changed?

On June 20, 2023, the CDPH quietly updated its guidance on the definition of outbreaks in non-healthcare settings by taking the timeframe for counting COVID-19 cases in a particular exposed group down from 14 days to 7 days. This change means that the Cal/OSHA outbreak requirements now only apply when there have been three or more COVID-19 cases within an exposed group during a 7 day period. CDPH’s stated reason for the change is “based on the shortened disease incubation period with more recent SARS-CoV-2 variants.​”

The change should make it much easier for employers to avoid hitting outbreak status, and triggering the accompanying restrictions. But, employers still need to look at a 14-day period for getting out of outbreak status, i.e. Section 3205.1 applies until there are one or fewer COVID-19 cases detected in the exposed group for a 14-day period. Also, the major outbreak provisions, which require even more mitigation controls and are triggered by 20 or more employee COVID-19 cases in the exposed group within a 30-day period, remain unchanged from the 14-day counting window (they are not tied to the CDPH changes).

What Does Our Business Still Need To Do If There Is An Outbreak?

Now, if your business has 3 or more COVID-19 cases in an exposed group during their infectious period in a 7-day period, it will be in outbreak status. During an outbreak, employers must still:

  • Immediately make testing available to employees in the exposed group for the outbreak and continue to make tests available at least weekly until there are one or fewer new COVID-19 cases detected in the exposed group for a 14-day period.
  • Ensure that all employees who had close contacts and remain at work take a COVID-19 test within three to five days after the close contact, and exclude from the workplace employees who test positive for COVID-19.
  • Exclude employees who do not take a COVID-19 test within three to five days after the close contact until the return-to-work requirements for COVID-19 cases are met.
  • Perform a review of potentially relevant COVID-19 policies, procedures, and controls and implement changes as needed to prevent further spread of COVID-19 as soon as the outbreak provisions apply, and then periodically thereafter.
  • Implement ventilation changes to mechanical ventilation systems including increasing filtration efficiency to at least MERV-13, or the highest efficiency compatible with the ventilation system. Evaluate whether HEPA air filtration units are needed.
  • Require employees in the exposed group, regardless of vaccination status, to wear a face coverings when indoors, or when outdoors and less than six feet from another person, unless an exception applies.

Workplace Solutions

While many companies may have put these issues somewhat out of sight and out of mind, it is important to remember that restrictions remain as employees may be traveling and bringing illnesses back to the workplace. Outbreaks are still happening, but this change helps blunt some of the impact. Stay tuned for updated guidance and developments, and don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Coby Turner