By Mark Trapp, Andrew Sommer, and Beeta Lashkari
On November 30, 2020, Cal/OSHA issued its final COVID-19 Emergency Temporary Standard (“ETS”), with all of its provisions effective immediately. One of those provisions — the exclusion pay and benefits continuation requirements — has been at the center of much controversy.
Typical among these COVID-19 emergency rules, the Cal/OSHA regulations requires employers to exclude from the workplace “COVID-19 cases” as well as employees who experience a “close contact” exposure (i.e., contact within 6′ of a confirmed case for a cumulative 15 minutes). But the Cal/OSHA ETS gets controversial at Sec. 3205(c)(10)(C), where it requires employers to continue and maintain those employees’ earnings, seniority, and all other employment rights and benefits, as if the employee had not been removed from the job. Where permitted by law and when not covered by workers’ compensation, employers may use employer-provided employee sick leave benefits, and may consider benefit payments from public sources, in determining how to maintain earnings, rights and benefits.
There are several important exceptions to these exclusion pay and benefits continuation requirements. For example, the ETS provides that the provision does not kick in for any period of time when the employee is not able to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission. Likewise, the pay and benefits continuation provision does not apply where the employer can demonstrate the employee’s COVID-19 exposure is not work-related. Finally, although not characterized as an “exception” specific to the exclusion pay and benefits provision, the ETS does also carve-out employees who can be temporarily reassigned to work where they do not have contact with other persons until applicable return-to-work requirements are met.
To provide some clarification about this pay and benefits continuation provision (as well as most other elements of the ETS), Cal/OSHA has issued two batches of FAQs, most recently updated January 8th. There are now 10 FAQs related to exclusion pay and benefits, most notable among them:
A frequently asked question that we have field but which is not addressed by Cal/OSHA’s FAQs is whether an employee excluded for reasons other than being a COVID-19 case or experiencing a close contact exposure comes under the exclusion pay and benefits provision. This is especially relevant for employers who have internal exclusion policies that exceed the requirements of the ETS; e.g., excluding from work all employees within an outbreak testing group, or excluding from work employees in an outbreak testing group who refuse to participate in the testing. In such circumstances, we do not believe those employees are covered by the exclusion pay and benefits continuation provision. This is because the provision explicitly states that it is “[f]or employees excluded from work under subsection (c)(10),” and subsection (c)(10) mandates exclusion only in two scenarios: (1) COVID-19 cases; and (2) COVID-19 exposure (i.e., close contacts).
Not surprisingly, given the substantial burden this provision places on employers, lawsuits challenging the ETS generally, and this exclusion pay and benefits provision specifically, have already been filed. For example, on December 16, 2020, the National Retail Federation (NRF) and others brought a legal challenge against the California Department of Industrial Relations, Cal/OSHA, and the California Occupational Safety & Health Standards Board, alleging, among other things, that the provisions of the ETS that regulate wages and employee benefits are areas over which Cal/OSHA has not been granted statutory authority. Specifically, the complaint alleges:
“The regulation of wages, hours, and working conditions, including paid leave, is the domain of the [Department of Labor Standards Enforcement]. DOSH’s attempt to overstep its jurisdiction and regulate wage and paid leave issues is improper and creates considerable confusion about the interaction of the ETS regulations with the various federal and state paid leave mandates and Workers’ Compensation…. Requiring employers to provide unlimited paid exclusion periods does not advance the state’s safety interest…. The ETS regulations improperly seek to regulate employers for a hazard that entered the workplace from outside, and to impose on employers financial responsibility to provide wages for a harm they did not cause.”
With possible advancements on the legal front looming, an Advisory Committee process to reexamine the Cal/OSHA ETS set to begin in mid-February, as well as the likely promulgation of a Federal OSHA COVID-19 ETS by mid-March, it remains to be seen how the ETS, including its exclusion pay and benefits provision, will be changed (if at all). We will be sure to keep you updated.
In the meantime, for more details, plan to join Conn Maciel Carey’s Cal/OSHA team — Andrew Sommer, Fred Walter and Megan Shaked — tomorrow, Tuesday, January 26th, at 12 PM PT / 3 PM ET for a complimentary webinar about Cal/OSHA’s COVID-19 Emergency Temporary Standard. This program will provide an overview of the regulation, existing and anticipated guidance provided by Cal/OSHA, and enforcement efforts by Cal/OSHA to date. They will also examine the interplay between the emergency temporary standard and related new California legislation, including AB 685 and SB 1159.
The webinar agenda includes:
Click here to register for the Cal/OSHA COVID-19 ETS webinar.
Conn Maciel Carey LLP