Masks. Vaccination. Training. Testing. The recently-revised Cal/OSHA Emergency Temporary Standards (ETS) fundamentally rewrite employer obligations with respect to protecting employees from COVID-19.
But what does the revised ETS say about excluding employees from the workplace over COVID-19 concerns? And what about the controversial pay requirements in the original ETS?
Who Must Be Excluded?
The revised ETS require employers to exclude from the workplace “COVID-19 cases,” which include persons who are positive for COVID-19, either by a test or diagnosis by a licensed health care provider. It also includes persons ordered to isolate by a local or state health official.
The revised ETS also require employers to exclude employees who had a “close contact” with a COVID-19 case, which means being within six feet for a cumulative total of 15 minutes or more in a 24-hour period during the COVID-19 case’s “high-risk exposure period.” This period generally starts two days before the person first developed symptoms, or two days before a positive-test-specimen was collected.
There are two notable exceptions for close-contact exclusion. First, employees who are fully-vaccinated (as documented by the employer) before the close contact do not have to be excluded so long as they do not develop COVID-19 symptoms. Second, employees who were previously excluded from the workplace for testing positive are not subject to close-contact exclusion for a period of 90 days, measured from their prior onset of symptoms or positive test.
How Long Must They Be Excluded?
COVID-positive employees with symptoms can’t return to work until they meet all three of the following criteria: (1) at least 24 hours have passed since a fever (100.4 degrees) has resolved without use of fever-reducing medications; (2) other COVID-19 symptoms have improved; and (3) at least 10 days have passed since COVID-19 symptoms first appeared.
COVID-19 positive employees who are asymptomatic must remain out for at least 10 days since the specimen collection of their first positive test.
Employers are not permitted to require a negative test as an additional requirement to return after the employees meet the above return-to-work criteria.
Close contacts who never develop COVID-19 symptoms may return after 10 days have passed since the close contact.
Close contacts who develop symptoms must either complete the return-to-work requirements described above for symptomatic COVID-positive employees, or alternatively meet the following criteria to return: (1) a negative PCR test taken after the onset of symptoms; (2) at least 10 days have passed since the last known close contact; and (3) symptom-free for at least 24 hours without the use of fever-reducing medication.
There are reduced return-to-work requirements for health care workers, emergency responders, and social service workers during critical staffing shortages.
Must The Employee Be Paid While Excluded?
While employees are excluded under the revised ETS, employers “shall continue and maintain an employee’s earnings, wages, 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.” Wages must be paid at the regular rate of pay no later than the regular pay day for the pay period. Employers may require employees to use sick leave for this purpose, but must maintain earnings even if no sick leave is available. At the time of exclusion, employers must provide excluded employees information on this benefit, as well as any other COVID-19-related benefits available under applicable law or company policy.
Notably, whereas the original version of the ETS included a requirement that the excluded employee be otherwise able and available to work in order to qualify for exclusion pay, that requirement is deleted in the revised ETS.
There are two primary exceptions. First, exclusion pay is not required where the employee receives disability payments or temporary disability under workers’ compensation. Second, exclusion pay is not required for close-contact exclusions where the employer can demonstrate the close contact is not work-related. If utilizing one of these exceptions, the employer must inform the employee of the denial and the applicable exception.
In addition, the revised ETS does not apply to the following: (1) work locations with one employee who does not have contact with other persons; (2) employees working from home; (3) facilities covered under the Aerosol Transmissible Diseases requirements; and (4) employees teleworking from a location of the employee’s choice.
Have any questions or want to know more about the new revised ETS? Join us for our June 29 webinar on the new-look ETS (or watch it on demand).