What happens when an employee tests positive for COVID-19?

As many companies are returning back to in person work, but still require COVID-19 testing, employees may wonder what compensation they are entitled to if they are forced to stay out of the office because of COVID-19.

Compensation for employees who are out of the office because of COVID-19

As of November 30, 2020, employers must exclude employees from work who tested positive for COVID-19 or had COVID-19 exposure from the workplace set forth under California’s Department of Industrial Relations, Division of Occupational Safety and Health’s (CalOSHA) Emergency Temporary Standards. [1]

Under these standards, employers must continue and maintain the employee’s earnings, seniority, and all other rights and benefits, including the right to job status, when the employer prevents the employee from working in the office because of either a positive COVID-19 result or a COVID-19 related order to isolate. [2]

SB 1159 codifies the COVID-19 presumption created by Executive Order N-62-20 and provides two new rebuttable presumptions:  that an employee’s COVID-19 illness is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met.  SB1159 came into effect on September 17, 2020 and will remain in effect through January 1, 2023. [3]

If the employee is unable to perform their usual job because they caught COVID-19 at work, the employee may be eligible for workers’ compensation benefits, including temporary disability payments and medical treatment. If the employee is eligible under SB 1159’s criteria, the employee will be presumed eligible for workers’ compensation benefits. However, the employer can dispute this claim and present evidence, the employee did not contract COVID-19 at work. [4]

If the employee becomes sick or injured due to COVID-19, it is likely compensable if the employee is a first responder or a healthcare worker, or there is an “outbreak” at the employee’s workplace and the employer has 5 or more employees. [5]

The employee will need to file the claim form (DWC-1) with the employer within 30 days of discovering the illness to start the workers’ compensation process. [6]

If an employee is out of work because of COVID-19, the amount of compensation will vary between an employer with 25 or more employees and an employer with less than 25 employees.

Compensation employees are entitled to if the employer has:

25 or more employees

California requires employers with 26 or more employers to provide their employees up to 80 hours/2 weeks of supplemental paid sick leave for COVID-19 related reasons under the COVID-19 Supplemental Paid Sick Leave (COVID-19 SPSL). This is retroactive from January 1, 2021 and will expire on September 30, 2021.  [7]

This provides California employees who work for employers with 26 or more employees with 2 weeks of paid sick leave when they cannot work for reasons related to COVID-19. [8]

These paid sick days under COVID-19 SPSL are in addition to California Paid Sick Days and any sick day leave employees took in 2020. [9]

If the employee is out for more than 2 weeks based on a single exposure, but does not meet the regulation’s requirements to return to work, the employee may be entitled to other benefits, such as Temporary Disability, Disability, or Supplemental Paid Sick Leave. The rate of pay for exclusion pay is an employee’s regular rate of pay for the pay period in which the employee is excluded. [10]

 Employers with at least 50 employees may also elect to provide up to 80 hours of COVID-19 related paid sick leave and up to 12 weeks of extended FMLA leave for their employees. These employers are not required to provide this paid sick leave or extended FMLA leave. [11]

Additionally, under the CFRA, this allows employees can take unpaid protected leave to care for a “family member” with a serious health condition and also to care for the serious health condition of the employee (not including pregnancy). They are allowed to take this unpaid protected leave for up to 12 weeks.  [12]

Fewer than 25 employees

Employees may be still compensable if they test positive for COVID-19 or come in close contact with someone with COVID-19, even if the employer has fewer than 25 employees.  

If an employee is affected from work because of COVID-19 but the employer has less than 25 employees the workers who become exposed to COVID-19 may be able to get emergency temporary standard exclusion pay. [13]

Additionally, employers are required to provide paid sick leave to workers in California under the Healthy Workplace Healthy Family Act of 2014 (HWHFA).

It is a requirement under California Law that employers provide at least one hour of paid sick leave to employees for every 30 hours worked. An employee who is full time (working 40 hours per week), this amounts to at least three days of paid sick leave per year. The employee must be allowed to roll over accrued, but unused sick leave to the following year. However, the employer can limit the amount of paid sick leave to roll over to 48 hours/ six days. [14]

Effective January 1, 2021, private employers of 5 or more employees within the United States are covered by CFRA. CFRA also applies to the California state and local governments as employers. [15]

An employer is not required to pay an employee during a CFRA leave except, under CFRA regulations, the employer may require, or the employee may elect to use vacation time or other paid leave; however, the use of sick leave is reserved for the employee's own serious health condition or other reasons mutually agreed upon between the employer and the employee. [16]

Tyler Law LLP is keeping up to date with the latest COVID-19 developments and can help advise your business on best practices unique to your situation.