COVID-19 COMPLIANCE ALERT
CAL/OSHA UPDATE AND A DISCUSSION OF EXCLUSION PAY: WHAT IT IS AND WHEN TO PAY
California employers should be familiar with the recent Cal/OSHA Emergency Regulations that took effect on November 30, 2020. The Emergency Regulations apply to all places of employment in California with limited exceptions for (1) employment with only one employee who does not have contact with other persons; (2) employees working from home; and (3) an exception for hospitals and other healthcare-related facilities covered by the Aerosol Transmissible Diseases (ATD) Standard. See our previous DDWK update for further information about the Cal/OSHA Emergency Regulations.
Updated Cal/OSHA Guidance Available
On January 8, 2021, Cal/OSHA updated its Frequently Asked Questions (FAQs), found here. The guidance is an excellent tool for employers to educate themselves on compliance requirements and application of the new Cal/OSHA regulations. This DDWK Update provides additional discussion about the guidance and Cal/OSHA exclusion pay requirements. Highlights include:
- Enforcement of the emergency regulations will take into account the employer’s good faith efforts to comply. 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 some violations.
- An employer that offers COVID-19 testing 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 an employee who refuses a COVID-19 test offered by the employer.
Exclusion Pay Eligibility and Requirements
Although employers have been subject to federal paid sick leave and local supplemental sick leave requirements throughout the COVID-19 pandemic, exclusion pay is a new and daunting requirement faced by California employers. Exclusion pay is required under the following circumstances:
- If a quarantined employee is able and available to work (i.e. asymptomatic during the quarantine period), the employer must continue to provide the employee’s pay and benefits throughout the quarantine period.
- An employer may require a quarantined employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount that employee receives in other benefit payments.
- If an employee is unable to work because of his or her COVID-19 symptoms, then the employee would not be eligible for exclusion pay. In that situation, the employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.
California businesses with workers on site must be prepared to defend their compliance efforts during a COVID-19 employee exposure or infection, including implementation of a comprehensive written COVID-19 Prevention Plan. The Cal/OSHA compliance “grace” period is coming to an end on February 1, 2021. Contact us for assistance with exclusion pay and other Cal/OSHA COVID-19 compliance issues.
