Rick Rossignol

Excluded From the workplace

The CDPH recommendations:

  1. Positive Test. If an employee tests positive, regardless of their vaccination status or whether they have had a previous COVID-19 infection, they must be excluded from the workplace for at least 5 days.  The employee may return to work after day 5 if symptoms are not present or are resolving and a COVID-19 test, collected on day 5 or later, comes back negative.  The guidance recommends an antigen test, versus a PCR test for this purpose.  If the employee is unable to test or refuses to test they cannot return to work until 10 days have passed since the test and they no longer have a fever.  Employees who return to work before 10 days have elapsed must wear a well-fitting face covering for 10 days after the positive test. Effectively this means that employees will have to wear a mask for up to five days after returning to work.  However, local jurisdictions may have their own masking requirements which require masks of all employees anyways.
  2. Exposure of an Unvaccinated or Booster Eligible Employee.  The FAQs makes clear that the term unvaccinated does not exempt those who have had a previous COVID-19 infection which is a departure from the terms of the ETS which did not require that these employee be excluded. 
  • Now all “naturally immune” employees (those that have had COVID-19 within the last 90 days) will be treated the same as an unvaccinated employee if they do not otherwise have a COVID-19 vaccination.
  • If an employee is unvaccinated or booster eligible, they will have to be excluded from work for at least 5 days following the exposure, i.e., “close contact” with COVID-positive person.  Excluded employees should test on day 5 and can return to work and wear a mask for a total of 10 days following the exposure if they are asymptomatic and the test comes back negative. 
  • In the case of booster eligible employees, they may return to work sooner if they receive a negative COVID test within 3-5 days after last exposure to a case, wear a face covering around others for a total of 10 days after the exposure, and continue to have no symptoms.  If any employee in this category refuses to test or is unable to test they must remain at home for 10 days.  If the employee develops any symptoms during while excluded they are to be excluded pending the results of a test. 

3. Exposure of a Vaccinated but not Booster Eligible or Boosted Employee.  Employees in this category do not have to quarantine after an exposure but should test on day 5 after the exposure and wear a face covering for a total of 10 days following the exposure.  If the employee later tests positive they should quarantine subject to paragraph one above. If the employee develops any symptoms during this time they are to be excluded pending the results of a test.  

4. Employee Subject to Order to Isolate or Quarantine.  When an order to isolate, quarantine, or exclude an employee is issued by a local or state health official, the employee cannot return to work until the period of isolation or quarantine is completed or the order is lifted even if the order exceeds the specified exclusion requirements in the ETS or CDPH recommendation.

These detailed requirements clear up many of the questions employers had such as how to handle employees with previous COVID infections and the scope of the Governor’s Executive Order.  What is not addressed in the FAQs is the practical effect of requiring testing.  Given the current difficulty of being able to test,  employees are unlikely to find available testing within the required timeframes. Thus, employers should be prepared for employees remaining in quarantine for the longer 10 day period and should not hold count of an employee returning sooner.

CAL/OSHA Temporary Standard Covid

All Employers are required to create Covid 19 prevention plans to protect their employees. Similar to a IIPP, they must create a plan to evaluate the risks and resolve the risk.

California recently approved Cal/OSHA emergency temporary standards on COVID-19 infection prevention. These new temporary standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.

Why did Cal/OSHA propose revising the COVID-19 Prevention Emergency Temporary Standards?

A:  Cal/OSHA proposed revisions to the COVID-19 emergency temporary standards (ETS) to reflect the availability of vaccinations to limit workplace transmission, to revise requirements in light of updated Centers for Disease Control and California Department of Public Health (CDPH) face-covering guidance, and to provide options for employers to make a safe transition from physical distancing and face-covering mandates to more normal operations.
Q:  What is the status of the ETS?

A:  The ETS took effect on November 30, 2020. On June 3rd, the Occupational Safety and Health Standards Board (Standards Board) voted to adopt proposed revisions to the ETS, but with reservations about some provisions. The Standards Board also voted to form a subcommittee to advise on further revisions to the ETS in light of these reservations.
On June 9, the Standards Board voted to withdraw the proposed revisions from OAL review. The Division offered to make further revisions in light of updated CDPH face-covering guidance and to address key concerns raised by Board members and stakeholders at the June 3 meeting. On June 17, 2021, the Occupational Safety and Health Standards Board (Standards Board) voted to update the COVID-19 Emergency Temporary Standards (ETS), 8 CCR §§ 3205-3205.4. Executive Order N-09-21 permitted the revised ETS to take effect the same day.

What Changed

Q:  What are the important changes in the June 17 revised ETS?


  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  • No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
  • Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
  • Employers must provide unvaccinated employees with approved  respirators for voluntary use when working indoors or in a vehicle with others, upon request.
  • Employers may not retaliate against employees for wearing face coverings.
  • No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
    • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
    • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
  • No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
  • Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations 
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems

Q. Are there requirements from the November 2020 ETS that will remain in place?A:  Yes, including:

  • An effective written COVID-19 Prevention Program.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of outbreaks.
  • Providing notification to employees of exposure and close contacts.
  • Requirements to offer testing after potential exposures.
  • Requirements for responding to COVID-19 cases and outbreaks.
  • Quarantine and exclusion pay requirements.
  • Basic prevention requirements for employer-provided housing and transportation.

Using Background and Criminal Disclosures in the Hiring Process

clipboard with blank background check

Background checks are commonly used in the hiring process when an employer wants to make sure their job candidate has all necessary qualifications for the open position. It is important to conduct these background checks correctly and in compliance with the Fair Credit Reporting Act (FCRA). It is worth noting that FCRA does not apply when an employer does its own investigation, however, many times a third party will handle these reports. Background checks should always be completed with FCRA in mind to protect the rights of potential employees and keep their personal information safe.


When Background Checks are Useful


The employer will ultimately decide whether or not to conduct a background check, but it’s worth considering when attempting to find the right candidate. It is estimated that over 40% of resumés can contain false or tweaked information, which may incline an employer to ask for a background check in the hiring process. [1] Because resumés cannot always be trusted with complete certainty, background checks help verify education history, previous employment, and necessary qualifications. This will ensure that your candidates are being transparent in the hiring process and can fulfil your job requirements sufficiently.


Obviously, some positions require a background check, especially in cases where government security clearances are required for the job. When a position involves accounting or financial responsibilities, a credit report could provide insight into the candidate’s financial dependability.


These background checks can also eliminate liability issues for a company. Employees with behavior problems could potentially cost an employer, as they may be held responsible for negligence or failure to conduct proper safety procedures in the workplace. For example, if a taxi company hires a driver with a sub-par driving record, the employer could be held liable for any damages the driver causes while on the job. It makes sense in a case like this that a taxi company would make sure that their drivers have good driving records early in the hiring process.



Asking for Criminal Disclosures


Laws regarding the requesting of a job candidate’s criminal background and history will differ from state to state. In California, employers cannot seek information about certain types of criminal action. For example, information about an arrest or detention that did not result in a conviction is prohibited from consideration by the employer. California also recently passed a “ban-the-box” law that makes it illegal for private and public employers with five or more employees to ask about criminal history until the later stages of the application process.


The law requires employers to remove a commonly-used question on applications: “Have you ever been convicted of a felony?” For businesses in California, the answer is simple, you must wait to discover these criminal disclosures.



It can be tricky to decide whether or not to conduct background checks during the hiring process, but should you choose to use them, make sure to closely follow the FCRA guidelines and your state’s laws pertaining to criminal disclosures.


If you are in need of some assistance deciding if you need to conduct background checks, or with the process itself, you should reach out to one of our many trusted Human Resource advisors. RTR Consulting has more than 20 years devoted to developing effective and efficient human resources policies, procedures, and best practices for small, start-ups, and medium-sized businesses.




  1. http://rh-us.mediaroom.com/2017-08-17-Resume-Lies-On-The-Rise
  2. https://www.nolo.com/legal-encyclopedia/california-laws-employer-use-arrest-conviction-records.html#:~:text=On%20January%201%2C%202018%2C%20California’s,stages%20of%20the%20application%20process.

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