Cal/OSHA’s Emergency Standard and Its New Mandatory COVID-19 Paid Time Off Provision

On November 19, 2020, the California Occupational Safety and Health Standards Board, the standards-setting agency of the California Division of Occupational Safety and Health (Cal/OSHA), adopted an emergency standard regarding COVID-19 workplace prevention. The Standards Board submitted the new final rule to the Office of Administrative Law, which may approve the rule within as few as 10 days. This means employers may have to comply with the emergency standard as soon as Monday, November 30, 2020.

The emergency standard imposes a number of new requirements on California employers. These requirements include preparing a “written COVID-19 Prevention Program,” notifying employees and third parties of potential COVID-19 exposure, providing face coverings, and offering to test and/or testing employees for COVID-19 in certain situations.

In addition, in proposing the final rule, Cal/OSHA exercised authority employers generally associate with the California Division of Labor Standards Enforcement. As explained more fully below, under the final rule, employers must provide paid time off to those employees whom employers must exclude from the workplace because they fall within the definitions of “COVID-19 cases” or employees with “COVID-19 exposure.”

What are “COVID-19 cases”?

According to the rule, employers must exclude all “COVID-19 cases” from the workplace. The emergency standard defines a “COVID-19 case” as “a person who (1) [h]as a positive ‘COVID-19 test’ as defined [by the emergency standard]; (2) [i]s subject to COVID-19-related order to isolate issued by a local or state health official; or (3) [h]as died due to COVID-19.”

How does the emergency standard define “COVID-19 exposure”?

According to the standard, employers also must “exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.” The emergency standard defines “COVID-19 exposure” as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘high-risk exposure period.’”

What is the “high-risk exposure period”?

It depends. For individuals who develop COVID-19 symptoms, the high-risk exposure period is “from [2] days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.” For individuals who test positive but are asymptomatic, the high-risk exposure period is “from [2] days before until [10] days after the specimen for their first positive test for COVID-19 was collected.”

Does the final rule provide for any exceptions to excluding COVID-19 cases or exposed individuals from the workplace?

Yes. According to the standard, employers are not required to exclude employees “who have not been excluded or isolated by the local health department … if they are temporarily reassigned to work where they do not have contact with other persons until the return to work requirements … are met.”

What are California employers required to provide employees who must be excluded from the workplace under the final rule?

California employers must “continue and 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.”

What does “continue and maintain an employee’s earnings” mean?

We understand this phrase to mean that employers must provide “paid time off.”

How long are employers required to continue to provide “paid time off”?

Employers are required to continue to provide time off until the employees satisfy the new final rule’s return to work criteria, which is discussed in detail below.

Are employers required to provide paid time off each time they exclude from the workplace a particular employee who falls within the final rule’s definition of a COVID-19 case or COVID-19 exposure?

The final rule appears to require paid time off each time an employee meets the workplace exclusion criteria.

Can employers use California paid sick leave and/or COVID-19-related supplemental paid sick leave (SPSL) to satisfy paid time off obligations?

Yes, employers may use employer-provided employee sick leave benefits to satisfy their paid time off responsibilities. The final rule specifically refers to California Labor Code Section 248.1, which requires that employers with 500 or more employees provide SPSL.

Can employers consider government-provided wage replacement when providing paid time off?

Yes, employers may consider benefit payments from public sources in determining how to maintain earnings, rights, and benefits, where permitted by law and when not covered by workers’ compensation.

Are there any exceptions to providing paid time off under the final rule?

Yes, the final rule identifies two exceptions. First, employers are not required to provide paid time off for “any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.” Second, employers are not required to provide time off  “where the employer demonstrates that the COVID-19 exposure is not work related.”

How can employers demonstrate that an employee’s COVID-19 exposure is not work-related?

The final rule does not provide any information on how employers can satisfy this requirement. Cal/OSHA likely will issue answers to frequently asked questions that address this issue. In the interim, employers may wish to rely on the same information that California Labor Code Section 1159 suggests that employers use to rebut the workers’ compensation presumption that the employee contracted COVID-19 at the workplace. This information includes evidence of an employer’s safety measures to reduce potential COVID-19 transmission, as well as evidence of an employee’s non-occupational risks of COVID-19 infection.

Do employers have to provide employees that fall within the definition of a COVID-19 case or exposure with any other information?

Yes. Employers must provide employees with “[i]nformation regarding COVID-19-related benefits to which the employee[s] may be entitled under applicable federal, state, or local laws. This includes any benefits available under workers’ compensation law, the federal Families First Coronavirus Response Act, [California] Labor Code sections 248.1 [SPSL] and 248.5 [penalties and enforcement for not paying SPSL], Labor Code sections 3212.86 through 3212.88 [workers’ compensation presumptions for certain COVID-19 injuries and/or illness], local governmental requirements, the employer’s own leave policies, and leave guaranteed by contract.” Leave guaranteed by contract includes collective bargaining agreements.

When can employees who fall within the definition of a COVID-19 case or exposure return to work?

It depends. “COVID-19 cases with COVID-19 symptoms [must] not return to work until:

1. [a]t least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
2. COVID-19 symptoms have improved; and
3. [a]t least 10 days have passed since COVID-19 symptoms first appeared.

When can employees who tested positive for COVID-19 but did not develop symptoms return to work?

The final rule states that these individuals “shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.”

When can employees return to work if a state or local public health official ordered them to isolate or quarantine?

If a state or local health official issued an order to isolate or quarantine, “the employee[s] shall not return to work until the period of isolation or quarantine is completed or the order is lifted.” If the order did not specify a period, “then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.”

Can employers require that employees submit a negative COVID-19 test before returning to work?

No. The California Department of Public Health (CDPH) has opined that employers cannot condition reinstatement on a negative COVID-19 test because of the potential for discrimination against employees who tested positive. According to the CDPH Updated COVID-19 Testing Guidance issued on September 22, 2020, “because [Polymerase Chain Reaction] tests can remain positive long after an individual is no longer infectious, proof of a negative test should not be required prior to returning to the workplace after documented COVID infection.”

Can employers return employees to work before they meet the return to work criteria?

Yes, if Cal/OSHA gives permission and only in certain limited circumstances. According to the final rule, “If there are no violations of local or state health officer orders for isolation or quarantine, the [Cal/OSHA] may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety.” An example of this might be an employee who is in charge of safety protocols at a worksite for which the position requires special skills and the employee cannot readily be replaced by other existing or temporary employees. “In such cases,” the final rule states, “the employer shall develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.”

Ogletree Deakins will continue to monitor and report on developments with respect to Cal/OSHA’s emergency standard and the COVID-19 pandemic. We will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the California blog as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.