[*Update: Cal/OSHA Emergency Temporary Standards (ETS) has been extended until at least May 6, 2022, and Cal/OSHA has the ability to extend the ETS until the end of 2022.]

California employers must remember to comply with the nuances of the Cal/OSHA Emergency Temporary Standards (ETS), which became effective in November 2020, and are currently set to expire on January 14, 2022* (see update above).  While California’s COVID-19 Supplemental Paid Sick Leave expired in September 2021, Cal/OSHA ETS requirement to pay employees for “exclusion pay” still applies to employers.  Here are five reminders about the requirements for California employers to pay exclusion pay under the ETS:

1. Employers must comply with the Cal/OSHA ETS until at least May 6, 2022 (see update above).

Cal/OSHA is meeting on December 16, 2021 to discuss any potential changes to the ETS and whether to extend the ETS until April 14, 2022*.  Regardless of any action taken by Cal/OSHA, employers must still comply with the current ETS, including the requirement to provide exclusion pay to employees until at least January 14, 2022*.  Employers need to monitor the December 16th meeting to ensure compliance with any changes that are adopted (we will monitor and post updates, and will provide detailed information to subscribers to our blog).

2. Exclusion pay is required if the employee is excluded from work because of a workplace exposure to COVID-19.

An employee who is excluded from work because of a workplace COVID-19 exposure must receive exclusion pay if: 1) the employee was not assigned to telework during that time; and 2) the employee did not receive Disability Payments or Workers’ Compensation Temporary Disability Payments during the exclusion period.  Cal/OSHA explains that employers do not need to pay exclusion pay if it is a non-work exposure or due to another reason, such as a business closure, caring for a family member, disability, or vacation.  However, the employer has the burden of proof, and must show it is more likely than not that the employee’s COVID-19 exposure was outside of the workplace.

3. Employers cannot require employees to use paid sick leave provided to employees under California Labor Code section 246.

Employers are prohibited from requiring employees to use their California paid sick leave required under the Healthy Workplace Healthy Family Act of 2014 as set forth in Labor Code section 246.  Employers may require employees to use any other paid leave provided to employees that is separate and in addition to the California paid sick leave.  [Update: However, employers cannot require employees to first exhaust their 2022 Supplemental Paid Sick Leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).]

4. There is no cap on the total amount of exclusion pay that may be required.

The ETS does not cap the amount of exclusion pay for employees.  However, the ETS does provide that if an employee “is out of work for more than a standard exclusion period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, the employee may be entitled to other benefits, such as Temporary Disability, Disability….”

5. The employee is entitled to their regular rate of pay for the pay period in which the employee is excluded.

The amount of pay an employee is entitled to for exclusion pay is the regular rate of pay for the pay period the employee is excluded.  Cal/OSHA explains, “These employees are entitled to exclusion pay, depending on the length of the required exclusion period and how many days they were scheduled to work during that exclusion period.”  However, Cal/OSHA does not provide any explanation of how to calculate the amount owed to employees who work a variable schedule each pay period.  In addition, the employee must be paid no later than the regular payday for the pay period they had the work-related exclusion.