The California Division of Occupational Safety and Health (Cal/OSHA) issued Emergency Temporary Standards (ETS) regulations that require employers to exclude certain employees from the physical workplace until they can return safely. Employers must provide paid (no payment cap) and job-protected leave for the period that they are excluded. The COVID-19 pay mandate is retroactive to November 30, 2020, and expires on October 2, 2021, unless extended.
Here is a breakdown of what triggers the ETS and what employers are required to do.
A COVID-19 case refers to a person who meets one of the following:
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 hours within or overlapping with a high-risk exposure period.
High-risk exposure 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.
The high-risk exposure period for employees that have tested positive but have not experienced any symptoms, starts two days before and ends 10 days after they took their first positive test.
Exposed workplaces are defined to be any work location, or common area (including bathrooms, walkways, hallways, aisles, break, or eating/waiting areas.) accessed by any individual that meets the definition of a COVID-19 case during the high-risk exposure period.
Employers of all sizes are required to initiate protocols for multiple outbreaks when any of the following occurs:
If an event triggers a multiple outbreak protocol, employers must do the following:
This applies from the time of the triggering event until no new cases arise in 14 days. Therefore, any employee that has been excluded from work under these standards is entitled to maintain their earnings, seniority, and all other employee benefits/rights through this period.
Additionally, the ETS 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 they were actually infected.
There are two exceptions to the mandatory exclusion pay if:
The exceptions will be considered on a case-by-case basis and employers can face penalties for refusing to pay on the grounds that an employee’s exposure to the virus is not work-related if there is not enough evidence to support it.
Under worker’s compensation, there is a rebuttable presumption that an employee’s COVID-19 related illness can be an occupational injury that entitles them to benefits.
Per AB 685, employers are required to give notice of potential COVID-19 exposure within one business day to all employees and independent contractors. The new ETS further requires that employers notify any other employers or contractors that are present at the workplace.
Until the pandemic is over, employers should expect the ever-changing legislation to continue. It is important that to keep up to date with not only CAL/OSHA standards but any other local or federal department and consult with your trusted advisors before taking action in any situation.
Is there anything Payroll Systems can help you with as you accommodate rapid legislation changes? Reach out and talk to us about the easy-to-scale solutions you need for your business.
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This article provides general information and shouldn’t be construed as legal or HR advice. Since employment laws may change over time and can vary by location and industry, please consult a lawyer or HR expert for advice specific to your business. You can also contact Payroll Systems to inquire about our HR support services.