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March 7, 2021

News West

West Coast News Network

State Issues Important Guidance on Cal/OSHA COVID-19 Standards

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Newly posted FAQs bring employers welcome help in understanding what they need to do to satisfy Cal/OSHA’s Emergency Temporary COVID-19 Standards (ETS). These are key takeaways from the nearly 40 new FAQs posted on January 8, 2021:

Exclusion Pay: Sensible Guidance!

Cal/OSHA’s ETS, which became effective November 30, 2020, require that employers exclude from the workplace employees with COVID-19 (COVID-19 cases) and employees with COVID-19 exposure until certain return-to-work criteria are satisfied. The ETS also require that employers continue to pay COVID-19 cases and employees with exposure their regular wages (exclusion pay) and continue their benefits while the employees are excluded from the workplace, with exceptions. (The employer is not obligated to pay exclusion pay where the employer can demonstrate the employee contracted COVID-19 or was exposed off the job, for example.)

In an important development, the new FAQs posted by the California Department of Industrial Relations (DIR) make clear for the first time that employers are not obligated to pay exclusion pay when the COVID-19 case or employee with exposure is too ill to work due to the disease. “[I]f an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits under section 3205(c)(10)(C) [of the ETS],” the DIR writes. “The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.” The position taken by the DIR should be reliable authority for employers declining to pay exclusion pay to COVID-19 cases or employees with COVID-19 exposure who are too ill to work due to the virus and even when such employees apparently contracted or were exposed to the virus in the workplace.

The new FAQs also address how long employers must pay employees exclusion pay. “If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness.” Under the ETS, employers are not obligated to pay exclusion pay and maintain benefits where the employee is not “able and available to work.” This FAQ gives employers a potential foothold from which to terminate exclusion pay in circumstances of extended absence from work indicating the employee is too sick to work.

The FAQs also state that where an employee is receiving temporary disability benefits during the time the employee is excluded from the workplace under the ETS, the receipt of such benefits indicates that the employee is not “able and available to work” and, for that reason, not entitled to receive exclusion pay.

Cal/OSHA Enforcement: Good News, though Short Term

In good news for employers scrambling to comply with the many new requirements in the ETS, the DIR announced by the FAQs that, through February 1, 2021, Cal/OSHA “will cite but not assess monetary penalties” for violations of the ETS! The FAQs also state, however, that Cal/OSHA will not withhold monetary penalties where an employer fails to correct a violation of the ETS Cal/OSHA identifies, in the case of imminent hazards or where the employer’s violation of the ETS is also a violation of a Cal/OSHA standard that was in effect before the ETS became effective.

With respect to Cal/OSHA’s enforcement authority where employers violate the exclusion pay requirement, the FAQs take the position that, “[a]s with any violation, Cal/OSHA has the authority to issue a citation and require abatement. Whether employees or another agency can bring a claim in another forum is outside the scope of Cal/OSHA’s authority.” Cal/OSHA’s commentary in this respect may be in response to employment defense practitioners and the business community questioning whether Cal/OSHA has the authority to require that employers pay exclusion pay, as Cal/OSHA does by the ETS, and to enforce the requirement.

COVID-19 Testing Time is Compensable Time

The ETS require that employers offer COVID-19 testing “at no cost” to employees with potential COVID-19 exposure from the workplace. By the new FAQs, the DIR takes the position that, in addition to paying the employees’ wages for the “their time to get tested, as well as travel time to and from the testing site,” employers must reimburse employees for “travel costs to the testing site (e.g., mileage or public transportation costs).”

Excluding Asymptomatic Employees with Exposure

The ETS mandate that employers exclude from the workplace employees with COVID-19 exposure for 14 days from their last known exposure to a COVID-19 case. The FAQs posted this month, however, recognize that employers may allow asymptomatic employees with exposure to return to the workplace earlier, namely, after 10 days from their last known exposure to a COVID-19 case. The reduced exclusion period is a consequence of an Executive Order by Governor Gavin Newsom and guidance from the California Department of Public Health, each issued on December 14, 2020.

When Employees are Vaccinated, do the Rules Change?

In answer to the question of whether the ETS applies to employees who have been vaccinated for COVID-19, the DIR states: “For now, all prevention measures [in the ETS] must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.”

Closing

The updated FAQs answer some, but certainly not all, of the important open questions raised by the Cal/OSHA Emergency Temporary COVID-19 Standards. Nevertheless, as far as they go, the FAQs are important and deserve employers’ review. The updated FAQs are here.

Please contact the author or your Fox Rothschild LLP counsel for help addressing this subject.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.