Required Pandemic Wages for Positive Test or Workplace Exposure

With only limited exceptions, Cal/OSHA’s mandatory COVID-19 Emergency Temporary Standards (ETS) (effective November, 2020) apply to all California employers. See, What’s New in 2021: Infection Prevention Direction CAL/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)

Exclusion Pay: The ETS require covered employers to provide employee pay and to maintain seniority and all other rights and benefits during absences due to ● a positive COVID test; or ● potential workplace COVID exposure.

The ETS and their frequently-asked questions advise:

• The exclusion pay only applies if the worker is otherwise available and physically able to work. Thus, it is not required if the absence is unrelated to actual or possible exposure such as a business closure, caring for a family member, disability, or vacation.

• Such pay only applies if the employer is unable to have the employee work remotely while excluded from the workplace.

• Exclusion pay is only required if the COVID exposure was work-related. It is the employer’s obligation to amply investigate and document that outside exposure was more likely than not.

• If an employee is unable to work because of his/her own COVID symptoms, then that individual may be eligible for workers’ compensation or State Disability Insurance benefits but not exclusion pay.

• An employer, at least in theory, may require the employee to exhaust paid sick leave benefits before providing exclusion pay “to the extent permitted by law.” However, it is not clear that California would allow any such required use policy since its paid sick leave law does not expressly address the issue.

• Exclusion pay is limited to a standard quarantine period based on a single exposure or positive test.

• Employers may not estimate what an employee might receive through public benefits and deduct that estimate from exclusion pay.

See also:

• What’s New in 2021: One-Stop COVID SHOP – New California Website and Employer Portal (March 5, 2021)
• Cautionary Tale Episode 40 Big Stick Compliance – Cal/OSHA Fines Numerous Businesses For COVID-19 Violations (March 4, 2021)
• What’s New 2021: Getting Under The Hood – New Toolkit For Workplace Leave Compliance (February 25, 2021)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
March 18, 2021