California OSHA's Emergency Temporary Standards Exclusion Pay

Revised Exclusion Pay Rules

In December 2021 Cal/OSHA revised the COVID-19 Emergency Temporary Standards (ETS) related to returning to work after a close contact. The revisions are effective starting on January 14, 2022. Employers should be aware of these revisions and consequences for not complying. [1]

What are the Emergency Temporary Standards Exclusion Pay?

Cal/OSHA’s Emergency Temporary Standards (“ETS”) on COVID-19 Prevention require employers to exclude employees from the workplace under certain circumstances related to COVID-19 exposure. At all times, the employer must maintain the employee's pay and benefits when the employee is excluded. 

If an employee is excluded from work because of workplace COVID-19 exposure under the ETS, the employee should 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.

An employee who has experienced a COVID-19 exposure or tests positive for COVID-19 from the workplace would typically receive pay for the period the employee is excluded. However, if an employee is out of work for more than the standard exclusion period based on a single exposure or positive test, the employee may be entitled to other benefits, such as Temporary Disability, Disability, or Supplemental Paid Sick Leave. [2]

Exception

The ETS does not require employers to pay workers who are excluded from work if the employer can show that the employee’s COVID-19 exposure was not work related. Proving the COVID-19 exposure is not work related involves an employer conducting an investigation and producing evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace. [3]

Comparison to 2021 COVID-19 Supplemental Sick Leave Law

Exclusion pay available under the ETS differs from 2021 Supplemental Paid Sick Leave in that employees need not have been exposed to COVID-19 at work for 2021 Supplemental Paid Sick Leave to apply. Employers may require employees who are excluded from work under the ETS to first exhaust 2021 Supplemental Paid Sick Leave. [4]

 An employer may require an employee to use any supplemental leave available to the employee under the 2021 COVID-19 Supplemental Paid Sick Leave law (Labor Code §248.2). However, an employer cannot require the employee to use the standard paid sick leave mandated under Labor Code section 246, even when there has been a workplace exposure and the employer is required to exclude employees under the ETS. [5]

Rate of Pay Calculation

The rate of pay for exclusion pay for employees excluded from the workplace due to exposure to COVID-19 at work is an employee’s regular rate of pay for the pay period in which the employee is excluded. The 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. Employees must be paid no later than the regular payday for the pay period(s) in which the employee is excluded. [6]

Consequences for Employers

If an employer does not comply, Cal/OSHA has the authority to issue a citation and require abatement for violations of Cal/OSHA standards. And if the employee did not receive pay for the exclusion period, the employee can likely file a claim with the Labor Commissioner's Office. [7]