Cal/OSHA Emergency Temporary Standards (“ETS”) apply to most workplaces in California, with very few exceptions. Enacted in November of 2020, the ETS sets requirements for California employers related to COVID-19 protocols for exposures at the workplace and measures to take if employees are exposed to or catch COVID-19 at the workplace. We have written about the ETS extensively before, but wanted to focus on five common questions we are seeing from employers about the ETS and the recent revisions to the ETS that took effect on January 14, 2022:
1. Which employers are covered by the ETS?
The ETS applies to all employers, employees, and places of employment with the following exceptions:
- Work locations where there is only one employee who does not have contact with other people.
- Employees who are working from home.
- Employees who are covered by the Aerosol Transmissible Diseases regulation (Cal. Code Regs., tit. 8, § 5199) (section 5199).
- Employees working from a location chosen by the employee that is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).
2. Does an employer need to pay exclusion pay if the workplace is closed because of COVID-19 or any other reason?
Cal/OSHA’s updated FAQs (available here: https://www.dir.ca.gov/dosh/coronavirus/ETS-FAQ2_01.24.2022-AF.pdf) provides that if the business closes, exclusion pay is not required. The FAQs state: “No, the employer need not maintain the exposed employee’s earnings and benefits if the excluded employee is unable to work because of reasons other than exposure to COVID-19 at work (e.g., a non-work exposure, business closure, caring for a family member, disability, or vacation). Such employees may be eligible for other leave, including sick leave, or other benefits such as Disability Insurance, Paid Family Leave, or Unemployment Insurance Benefits.”
3. Are at-home tests acceptable for employee testing requirements?
Cal/OSHA accepts home-based testing and explains:
To comply with the testing requirements of the ETS, over-the-counter (OTC) tests may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. This independent confirmation can be accomplished in multiple ways. For example, the employer can validate the test through the use of a proctored test that is supervised by a licensed, authorized telehealth provider via video proctoring, or by a point-of-care test provider. Alternatively, the employer could proctor the OTC test itself, including by video. Another option to meet the requirement that a test is not “self-read” is to use an OTC test that features digital reporting of date and time stamped results. These tests do not require observation by an employer or telehealth proctor.
See Question #2 on page 11 – https://www.dir.ca.gov/dosh/coronavirus/ETS-FAQ2_01.24.2022-AF.pdf
4. Can employers require employees to use paid sick leave in lieu of exclusion pay?
Employers may not require employees to use their California paid sick leave provided under Labor Code section 246, but may require the employees to use any other paid sick leave that is in addition to the California paid sick leave requirements. The FAQs state the following: “Employers that provide a paid leave policy that is separate and in addition to the paid sick leave policy required by California’s Paid Sick Leave law (section 246 of the Labor Code) may require their employees to use that separate sick leave as permitted by law. However, an employer cannot require the employee to use the standard paid sick leave mandated under California’s Paid Sick Leave law, even when there has been a workplace exposure and the employer is required to exclude employees under the ETS.”
5. How to learn more about the ETS?
Cal/OSHA’s website provides various FAQs and materials for employers. Cal/OSHA’s “Frequently Asked Questions Related to COVID-19” can be found here.
“Posters, Educational Materials, Model Programs and Other Resources Related to COVID-19” can be found here.
Cal/OSHA’s COVID-19 Model Prevention Program (updated January 14, 2022) which most employers are required to implement, can be found here.