Battle Over Infectious-Disease Regulations Under Way in California

​For the past three years, the COVID-19 pandemic has often dominated the agenda of California workplace regulators. During this time, worker advocates and business groups have clashed over which provisions to include in the ever-changing COVID-19-related rules. A new battle over infectious-disease regulations is now beginning.

Regulators are developing a general-industry standard for aerosol transmissible diseases (ATD), which are illnesses that can spread through the air. Both labor groups and employers are waiting for a draft to be released by the California Division of Occupational Safety and Health (Cal/OSHA).

The two sides have differing visions for the new regulations. One sticking point is exclusion pay, which allows workers excluded from the workplace to keep their pay and benefits. Exclusion pay may occur when a worker is not allowed to come to work because of an infection, a mandated quarantine or exposure to an infected person.

Under previous versions of the COVID-19 regulations, companies were required to provide exclusion pay for specific COVID-19-related reasons. To the disappointment of the labor movement, Cal/OSHA dropped this provision in the new COVID-19 rules adopted in December 2022. Now labor groups are calling for it to be included in the general-industry standard, while employer organizations insist that existing leave programs are adequate.

Labor Groups Urge Strong Protections

Worksafe, a nonprofit based in Oakland, Calif., is seeking protections against novel pathogens that could arise in the future, potentially triggering another pandemic. The group is calling for several provisions to address workplace transmission of such pathogens, including:

• Health and safety protections to reduce the risk of infection.
• Pay protections to ensure that workers who are excluded from the workplace keep their pay and benefits.
• Job protections to shield workers from retaliation and ensure that employees can return to the same job or a comparable one.

The nonprofit hopes the new safeguards will be modeled on an existing California ATD standard, which applies to health care facilities and other high-risk worksites.

"We think that all sectors should have these protections," said AnaStacia Wright, a Worksafe attorney in Oakland, Calif.

According to many worker advocates, existing leave options are insufficient, especially for low-wage employees. For instance, low-wage workers are less likely to have the generous benefits packages often seen with highly paid corporate jobs, Wright said. The disparities are shown in a 2017 study by Pew Research Center.

Another option is the California Paid Sick Leave program, which mandates that employers provide at least three days of paid leave annually. The law has strict eligibility requirements, so not all employees will qualify.

For work-related illnesses, employees can file a claim for workers' compensation. However, benefits typically are capped at two-thirds of average weekly wages.

Another program for sick workers is state disability insurance. It only provides 60 percent to 70 percent of regular wages, up to a certain amount. Also, the program doesn't offer job protections.

Employees can seek job-protected unpaid leave through the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA). One downside is not all workers meet the eligibility criteria. In addition, employees might need the leave for other situations, Wright noted.

Yet another issue is protecting sick employees from employers retaliating against them for taking time off. Although California workers have strong protections against retaliation, the laws can be confusing and difficult to navigate, said Katherine Wutchiett, a San Francisco attorney with Legal Aid at Work.

In the big picture, employees should be protected from dangerous illnesses, said Nicole Marquez, director of social insurance at the National Employment Law Project in Berkeley, Calif.

Exclusion pay helps workers stay home when sick and reduces the spread of disease at workplaces, leading to a healthier and happier workforce, she noted.

Employer Groups Seek Flexibility

The unlimited nature of exclusion pay has been costly for businesses, said Hannah Sweiss, an attorney with Fisher Phillips in Los Angeles. She said employers generally have been working hard to reduce the spread of COVID-19, but the high expenses have been challenging.

According to employer advocates, it can be difficult to prove where an employee contracted the virus. They say it's unfair to require exclusion pay when an employee was infected outside the workplace.

"Exclusion pay should not be the norm when there are ample leave options for workers," said Karen Tynan, an attorney with Ogletree Deakins in Sacramento, Calif.

Companies should be allowed to customize their leave strategy to their worksite, according to Tynan.

Employers hope the new standard will either fall under the existing Injury and Illness Prevention Program (IIPP) or will be a stand-alone rule similar to the IIPP regulation, she added.

Meanwhile, California employees who allege retaliation have many ways to assert their rights, Tynan said. For instance, they could file a complaint with regulators or file a lawsuit.

Workplace Safety

It's not only pandemics that are risky. There are also many everyday situations in which workers may be exposed to airborne pathogens, said Lisa Brosseau, research consultant at the University of Minnesota Center for Infectious Disease Research and Policy in Minneapolis. These situations include employees processing food in factories and construction workers digging up soil in desert climates.

According to Brosseau, California ideally would enact general-industry ATD regulations that address "a much broader range of infectious organisms."

Toni Vranjes is a freelance business writer in San Pedro, Calif.