On November 30, 2020, Cal/OSHA published a set of “Emergency Temporary Standards” that created new obligations and prohibitions on the part of California employers. Although “temporary,” they will likely be in force through at least May 2021, and potentially longer. You can access our blog on these temporary standards here.
On December 1, 2020, Cal/OSHA published a list of Frequently Asked Questions regarding the emergency regulations. While helpful, the FAQ still left many questions unanswered. On January 8, 2020, Cal/OSHA revised the FAQ to provide some additional guidance on testing obligations, paying employees who are excluded from the workplace and enforcement of the temporary standards. Many of these FAQs encompass wage and hour crossover issues, such as detailing circumstances where employees must be paid for travel time and time spent obtaining COVID-19 testing. Compliance with the employee pay requirements of the emergency standards is particularly crucial because of the possibility of wage and hour class action/representative action exposure, in addition to any citations that Cal/OSHA might levy.
Included within this blog are some of the FAQs that reflect questions our office has received. However, California employers are encouraged to familiarize themselves with all of the FAQs, as violation of the Emergency Temporary Standards may result in citations for monetary penalties. You may access the updated FAQs here. Any grammatical errors below are attributable solely to Cal/OSHA.
Q: How will Cal/OSHA enforce the ETS as employers implement the rule?
A: All employers are expected to comply with all provisions of the ETS, and Cal/OSHA will enforce the ETS, taking into consideration an employer’s good faith efforts to comply.
In addition to consideration of an employer’s good faith effort to comply before issuing a citation, for the first two months the rules are in effect (i.e., through February 1, 2021), Cal/OSHA will cite but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s Injury and Illness Prevention Program, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020. This brief period of relief from monetary penalties will allow Cal/OSHA and employers to focus on obtaining compliance, while ensuring workers still benefit from the protections in the ETS. This policy will not apply where an employer fails or refuses to abate a violation of the ETS Cal/OSHA has identified, or in the case of imminent hazards.
Q: What are the testing requirements in the ETS?
A: An employer’s testing obligations are the following:
Inform all employees on how they can obtain testing. This could be through the employer, local health department, a health plan, or at a community testing center. The only obligation to all employees is to provide information.
Offer testing to an employee at no cost and during working hours in the event of a potential COVID-19 work-related exposure.
Provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak)weeklCOVID-19 testing to all employees in an “exposed workplace” during an outbreak.
Testing must be provided in a manner that ensures employee confidentiality.
Q: Can employers send their employees to a free testing site for testing (e.g., run by their county) and is this considered to be “at no cost to employees?”
A: Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site(e.g., mileage or public transportation costs).
Q: What do employers do if employees refuse to take the tests required by various provisions of the emergency regulations?
A: An employer that offers a test at no cost to the employee does not violate the regulation if an employee declines or refuses to take it. The employer is not required to obtain a signed declination from employees who refuse to take a COVID-19 test offered by the employer.
Q: What does “during their working hours” or “during employees’ working hours” mean, in relation to providing COVID-19 testing?
A: These terms, as used in the regulations, mean that the test must be provided during paid time. While the employee must be compensated for their time and travel expenses, the employer is not obligated to provide the test during the employee’s normal working hours.
Exclusion Pay and Benefits
Q: Must an employer pay an employee while the employee is excluded from work?
A: If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, to the extent permitted by law, and may offset payments by the amount an employee receives in other benefit payments. (Please refer to the Labor Commissioner’s COVID-19 Guidance and Resources for information on paid sick leave requirements.). These obligations do not apply if an employer establishes the employee’s exposure was not work-related.
Q: Does an employer have to “maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job” if the employee is unable to work because of his or her COVID-19 symptoms?
A: No, if 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). The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.
Q: How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?
A: An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days (see above for potential impact of EO N-84-20). 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 employee, however, may be eligible for temporary disability or other benefits.
Q: Must an employer exclude an employee who claims a COVID-19 workplace exposure?
A: An employer should take any reports seriously and should investigate any evidence of an exposure. It is ultimately the employer’s responsibility to determine if an exposure occurred.
Q: Does an employer have to maintain an employee’s earnings and benefits under section 3205(c)(10)(C) if the employee is unable to work because of reasons other than protecting persons at the workplace from possible COVID-19 transmission?
A: No, the employer need not maintain the exposed employee’s earnings and benefits under section 3205(c)(10)(C) if the employee with COVID-19 exposure from the workplace is unable to work because of reasons other than protecting persons at the workplace from possible COVID-19 transmission (e.g., a business closure, caring for a family member, disability, or vacation). Such employees may be eligible for other benefits, including Disability Insurance, Paid Family Leave, or Unemployment Insurance benefits
Q: The ETS states that an employer is not required to provide exclusion pay if the employer can establish that an employee’s COVID-19 exposure was not work related. What does that mean?
A: The ETS does not require employers to pay workers who are excluded from work under section 3205(c)(10) if the employer can show that the employee’s COVID-19 exposure was not work related. In such circumstances, employers may have other legal or contractual payment obligations, but pay and benefits are not mandated by section 3205.
Q: How are employers proving that a COVID-19 exposure is not work related and rebutting the presumption under SB 1159 related?
A: SB 1159 provides a rebuttable presumption for certain workers and workplaces that an employee’s COVID-19-related illness is an occupational injury entitling the employee to workers’ compensation benefits. Rebutting that presumption and proving that COVID-19 exposure is not work related to avoid the ETS’ exclusion pay requirement involve an employer conducting comparable investigations and producing comparable evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace.
Q: How will the exclusion pay provision be enforced?
A: As 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.
Q: Can an employee receive both temporary disability benefits under workers’ compensation and receive their regular wages (or a portion of them) because they are excluded for work under section 3205(c)(10)(C)?
A: No. Cal/OSHA does not consider an employee receiving workers’ compensation temporary disability benefits for wages lost during the period in which they are excluded from the workplace to be “able and available to work” within the meaning of section 3205(c)(10)(C). Therefore, an employee cannot receive both types of benefits.
Q: If an employee is receiving temporary disability benefits through workers’ compensation because they test positive for COVID-19 but do not have symptoms that would otherwise prevent them from working, should they receive workers’ compensation benefits or exclusion pay under the ETS?
A: As noted above, Cal/OSHA does not consider an employee receiving temporary disability benefits through workers’ compensation to be considered “able and available to work” within the meaning of section 3205(c)(10)(C). However, if an asymptomatic employee is able and available to work but is not eligible to receive payment through workers’ compensation for lost wages during the period in which they are excluded from work, they should be paid for that time according to section 3205(c)(10).
We recommend employers contact qualified legal counsel for additional information. Employers should also work with certified safety experts to ensure that they have adopted a compliant written COVID-19 Prevention Program and that all aspects of their workplaces are in compliance with applicable law. Employers can also purchase our December 8, 2020 webinar on the “New COVID-19 Cal-OSHA Requirements for CA Employers and other COVID-19 Employment Developments” featuring SHLC attorneys S. Brett Sutton and Jared Hague, with special guest James Boretti, CSP, CEO of Boretti, Inc. You can access that material here.
To learn more about these Emergency Temporary Standards, you can sign up for our New Year Labor Law Update on January 21, 2021, presented by the Tahoe Chamber. We will be presenting on wide range of new developments in California and Nevada employment law, including independent contractor issues. View the event on our Events page or simply sign up on the Tahoe Chamber website by clicking here.