Last year, California’s Division of Occupational Safety and Health (Cal/OSHA) approved emergency COVID-19 temporary standards, which became effective and enforceable on November 30, 2020.
Under the standards, employers needed to take certain actions to safeguard the workplace from COVID-19, like creating and implementing a written COVID-19 prevention plan, planning to address and combat outbreaks, and following rules regarding employer-provided housing and transportation. On December 1, 2020, Cal/OSHA published guidance to help employers navigate the complex regulations, but employers were still left with many questions. On January 8, 2020, Cal/OSHA revised their guidance to give employers more clarity on their testing obligations, paying employees who are excluded from the workplace and how Cal/OSHA will start enforcing these standards.
The COVID-19 temporary standard obligates employers to do the following for testing:
- As part of the written COVID-19 prevention plan, inform all employees how they may obtain testing whether it is through the employer, local health department, health plan or community testing.
- Offer no-cost testing to an employee who may have a COVID-19 workplace exposure.
- Provide no-cost periodic testing — either weekly or twice weekly depending on the severity of the outbreak — to all employees who were in an exposed workplace during the outbreak.
- Provide testing in a manner that ensures employee confidentiality.
Yet, the standard didn’t provide for how an employer complied with these obligations or what happens when employees don’t comply. Cal/OSHA has now offered some practical guidance to assist employers when they are obligated to offer or provide testing under the COVID-19 temporary standard.
When obligated to test employees, employers don’t have to test employees at the worksite and may satisfy the no-cost requirement by sending employees to a free testing site such as a county-run location. Cal/OSHA reminds employers that no-cost also includes paying the employees for their time to get tested as well as travel costs to the testing site.
Employers were also unsure what to do when employees refuse to take a test. Cal/OSHA now states that as long as employers follow the above-described obligation to provide no-cost testing to employees, they have satisfied the testing mandates if an employee refuses or declines a test. Employers don’t have to obtain a signed declination from employees who refuse to test.
The COVID-19 temporary standard required employers to “maintain an employee’s earnings, 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” if the employer excludes the employee from the workplace due to a work-related COVID-19 exposure or infection. This pay requirement is one of the most confusing aspects of the standard, but the revised guidance narrows the scope.
First, employees must be “able and available to work” in order to receive exclusion pay. Cal/OSHA provides some examples of when an employee may not be able and available to work disqualifying them from exclusion pay:
- When the employee is symptomatic and would be unable to work due to the symptoms.
- If the employee is out of work for more than a standard quarantine period based on a single exposure or positive test, this may be evidence that they’re unable to work.
- If the employee is receiving temporary disability benefits through workers’ compensation.
- If the employee is unable to work because of reasons other than protecting the workplace from possible COVID-19 transmissions (e.g., business closure, caring for a family member, disability or vacation).
Cal/OSHA also continues to state that, to the extent permitted by law, an employer may require an employee to use paid sick leave to cover the pay requirement. Employers, however, shouldn’t require any employee to use paid sick leave provide for under California’s paid sick leave law because the law doesn’t permit an employer to require its usage.
Employees are only entitled to exclusion pay under the standard if the exposure or infection was work related. To prove the exposure is not work related, employers need to show that it’s more likely than not that an employee’s exposure didn’t occur in the workplace.
Recognizing the huge undertaking for employers to comply with a new set of rules, Cal/OSHA has taken a softer enforcement position at this time. While all employers covered by the standard are expected to comply with all provisions now, Cal/OSHA will take into consideration an employer’s good faith efforts to comply.
Further, through February 1, 2021, Cal/OSHA will not assess monetary penalties with its citations for failure to comply with provisions of the COVID-19 temporary standard that would not have been considered a violation of an employer’s Injury and Illness Prevention Program, respiration protection program or other applicable Cal/OSHA standard in effect prior to November 30, 2020. So, employers should take advantage and move quickly towards compliance with this standard to take advantage of the grace period.
Lastly, with vaccines beginning to rollout in greater numbers, Cal/OSHA provided some very limited guidance on how vaccines affect the standard. In short, the emergency COVID-19 temporary standard still applies, for now, to any vaccinated employees.
Staff Contact: Matthew J. Roberts