On January 8, 2021, the Department of Industrial Relations (DIR) issued guidance on Cal/OSHA’s Emergency Temporary COVID-19 Standards (ETS) in response to frequently asked questions (FAQs):

Cal/OSHA’s ETS, effective November 30, 2020, require that employers exclude from the workplace employees with COVID-19 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 certain exceptions. For example, an employer is not obligated to pay exclusion pay where the employer can demonstrate the employee contracted COVID-19 or was exposed off the job.
The FAQs clarify 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. However, the employee may be eligible for Workers’ Compensation or State Disability Insurance benefits.

Extended absences may result in a cessation of exclusion pay under the FAQs since the DIR advises “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.”

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

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. However, 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.

The ETS require that employers offer COVID-19 testing “at no cost” to employees with potential COVID-19 exposure from the workplace. In the 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).”

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, however, recognize that employers may allow asymptomatic employees with exposure to return to the workplace 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.

As to the application of the ETS 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.”

This is a developing area of law in California and, as a result, should any employee be diagnosed with COVID-19 one of the first call the employer should make is to qualified legal counsel.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.