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CAL/OSHA Issues New COVID-19 Pay Mandate – Here is What We Know

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. 

COVID-19 case refers to a person who meets one of the following:

  • Tests positive for COVID-19. 
  • Is subject to a COVID-19-related order to isolate issued by a local or state health official. 
  • The cause of death has been verified to be COVID-19 by a local health official or department. 

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:

  • The workplace or site has been deemed to be a location of a COVID-19 outbreak by a health official or department. 
  • Three or more cases in an exposed workplace have occurred within 14 days.

If an event triggers a multiple outbreak protocol, employers must do the following:

  • Immediately test all employees at the exposed workplace and again one week later. 
  • Continue to provide testing weekly or bi-weekly to those that must remain at the worksite. 
  • Exclude any exposed employees from the workplace. 
  • Launch an investigation to determine possible contributing factors to the outbreak and perform any necessary adjustments to COVID-19 protocols, to further prevent it from happening again. The investigation should be updated every 30 days that the outbreak continues or in response to any new information received. 
  • Contact your local health department within 48 hours and if applicable provide the total number of COVID-19 cases with as many details as possible. 

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. 

Exceptions 

There are two exceptions to the mandatory exclusion pay if:

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

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.