California Bill Would Require Employers to Continue Compensation for COVID-19–Positive Employees Excluded From Workplace

Quick Hits

• Legislation introduced in the California Assembly would require the Occupational Safety and Health Standards Board to adopt a standard requiring employers to continue pay and benefits for workers who are excluded from the workplace for COVID-19–related reasons.
• The bill would require the Standards Board to adopt regulations by February 3, 2025.
• The bill appears to be based on outdated state and federal health agency advice that has since been updated.

Background

Past versions of California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 regulations in both 2020 and 2021 had required employers to provide pay and benefits when employees were excluded from the workplace because of a COVID-19–positive test or symptoms. Those requirements were dropped from the current California COVID-19 Prevention Non-Emergency Standards but have reappeared in the text of AB 3106.

Proposed Labor Code Revisions

AB 3106 would add Sections 9255–9257 to the Labor Code. Under proposed Section 9255, the term “COVID-19 case” is defined as “a person who has a positive COVID-19 test that has been approved or granted an emergency use authorization by the United States Food and Drug Administration to diagnose current infection with the SARS-CoV-2 virus.”

Proposed Labor Code Section 9256 would require that symptomatic COVID-19 cases be excluded from the workplace until the following specific return-to-work requirements are met:

• “At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications.”
• “COVID-19 symptoms have improved.”
• “At least 10 days have passed since COVID-19 symptoms first appeared.”

Employers would be required to continue and maintain the earnings, wages, seniority, and all other employee rights and benefits, including an employee’s right to his or her former job status, for any employee excluded from the workplace due to testing positive for, or presenting with the symptoms of, COVID-19. The proposed payment requirement’s only exception would be when an employee received disability payments or was covered by workers’ compensation and received temporary disability.

Proposed Labor Code Section 9257 would direct Cal/OSHA to enforce the provisions by issuing citations and civil penalties.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments with respect to AB 3106 and other pending or potential changes to the occupational safety and health laws and regulations for California employers and will provide updates on the firm’s California and Workplace Safety and Health blogs as additional information becomes available.

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