Understanding Cal/OSHA's COVID-19 Exclusion-Pay Mandate

Some interesting and fast-moving developments regarding COVID-19 paid-leave laws will significantly affect California employers. The state's supplemental paid-sick-leave mandate for large employers and the federal Families First Coronavirus Response Act for smaller employers have both expired, but California employers must now reckon with new pay rules under the COVID-19 Emergency Temporary Standards (ETS).

The California Division of Occupational Safety and Health (Cal/OSHA) issued ETS regulations that require employers to exclude certain employees from the workplace until they can return safely. During this time, employers must provide paid, job-protected leave for the period the employees are excluded. The regulations require employers to pay (without any cap) for the time employees are excluded from the worksite.

Here's a breakdown of what triggers the pay mandate and how employers are required to respond.

ETS Requirements

The COVID-19 mandatory "exclusion pay" is retroactive to Nov. 30, 2020, and is set to expire on Oct. 2, 2021, unless it is extended. Employers of all sizes must activate a protocol for multiple outbreaks when either of the following events occur:

• The workplace has been identified by a local health department as the location of a COVID-19 outbreak.
• Three or more "COVID-19 cases" in an "exposed workplace" occur within a 14-day period.

Under the ETS, a "COVID-19 case" refers to a person who meets one of the following criteria:

• Has a positive COVID-19 test.
• Is subject to a COVID-19-related order to isolate issued by a local or state health official.
• Has died due to COVID-19, in the determination of a local health department or per inclusion in the COVID-19 statistics of a county.

A "COVID-19 exposure" is defined as being within 6 feet of a "COVID-19 case" for a cumulative 15 minutes or more in any 24-hour period within or overlapping with a "high-risk exposure period."

For a person with COVID-19 symptoms, a "high-risk exposure period" starts two days before symptoms first develop and lasts until 10 days after the symptoms first appeared and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.

For individuals who test positive but have no symptoms, a "high-risk exposure period" starts two days before and ends 10 days after the specimen was collected for their first positive test for COVID-19. 

What Is an 'Exposed Workplace'?

An "exposed workplace" means any work location, working area or common area accessed by someone who meets the definition of a COVID-19 case during the high-risk period. Locations include bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The exposed workplace does not include buildings or facilities that are not entered by a COVID-19 case.

If an event triggers the multiple-outbreak protocol, an employer must take the following steps:

• Immediately test all employees at the exposed workplace and again after one week.
• Provide testing at least once a week (or twice a week in some circumstances) to employees who remain at the worksite.
• Exclude any and all exposed employees from the workplace.
• Investigate to determine possible contributing factors to the outbreak and perform any changes to COVID-19 policies, procedures and controls. The investigation should be updated every 30 days that the outbreak continues or in response to new information.
• Contact the local health department, if applicable, within 48 hours and provide the total number of COVID-19 cases with details of each case.

Another protocol applies for a "major outbreak," which is defined as 20 or more COVID-19 cases in an exposed workplace within a 30-day period. In such a case, the employer must exclude positive cases and exposures from the workplace, among other requirements. 

Both protocols apply from the time of the triggering event until no new COVID-19 positive cases arise in a 14-day period. Therefore, employees who are excluded from work under the COVID-19 infections and outbreaks standards are entitled to maintain their earnings, seniority, and all other employee rights and benefits, including their right to their former job status. 

The ETS further requires employers to provide 10 days of paid leave and benefits for employees who are exposed to a COVID-19 case, without requiring a test to determine whether employees are actually infected at the time they are excluded from the workforce. 

Exceptions to Exclusion Pay

Two narrow exceptions to the mandatory exclusion pay exist for employers if:

• The employee is unable to work for reasons unrelated to possible COVID-19 transmission.
• The company demonstrates that the COVID-19 exposure was not work-related.

These exceptions should be considered on a case-by-case basis. Employers may face penalties for refusing to pay on the grounds that an employee's exposure to the virus is not work-related. For workers' compensation, there is a rebuttable presumption that an employee's COVID-19-related illness is an occupational injury entitling the employee to benefits. 

While employees may volunteer that they were exposed to COVID-19 while off duty, employers generally will have to rebut the presumption and prove that COVID-19 exposure is not work-related to avoid the exclusion-pay requirement. To do so, employers will need to conduct investigations and produce evidence to show it was more likely than not that an employee's COVID-19 exposure did not occur in the workplace. 

The newly enacted AB 685 requires employers to give notice of potential COVID-19 exposure within one business day to all employees and independent contractors, and the ETS further requires the employer to notify any other employers that are present at the workplace. A subcontractor's or other employer's staff at the worksite may likely count toward the three COVID-19 cases that trigger obligations under the multiple-outbreak protocol.

Challenges by the Business Community

Several trade associations have challenged the emergency regulations, arguing that the mandatory exclusion requirements are flawed because, for example, they require employees to be excluded from the workplace for 14 days even if they receive a negative test result. This conflicts with guidelines from the U.S. Centers for Disease Control and Prevention, which allow workers to end their quarantine after seven days if a diagnostic specimen test is negative and no symptoms were reported during daily monitoring. 

Until the pandemic is over, however, employers can expect more legislation to encourage employees to stay home without fear of retaliation or loss of pay if they are experiencing COVID-19 symptoms.

Katherine S. Catlos is an attorney with Kaufman Dolowich & Voluck in San Francisco.