On November 30, 2020, California’s Division of Occupational Safety and Health (Cal-OSHA) adopted a set of COVID-19 Emergency Temporary Standards (“ETS”), which became effective immediately. The ETS require employers to take various actions to protect their workplaces from COVID-19. You can read our previous blog post about the ETS here.
On December 1, 2020, Cal-OSHA released a Frequently Asked Questions page, which was intended to provide employers with guidance that would help them navigate the new requirements but left many questions unanswered. In response to employers’ continued demands for additional guidance and clarity, Cal-OSHA has updated its Frequently Asked Questions page three times since December 1, 2020. Below is a summary of the key information we have learned from these updates on the topics that are of the most interest to employers working to comply with the ETS.
Free COVID-19 Testing for Employees
What we already knew: Employers are required to provide free COVID-19 testing to all employees if there is a workplace outbreak. An outbreak is defined as 3 or more COVID-19 cases in an exposed workplace within a 14-day period.
What we learned: Employers do not have to provide the required free COVID-19 testing themselves or onsite. Rather, employers can direct employees to utilize free testing services provided by their state or county health department. However, in order to make the testing truly free for employees, employers must pay employees for the time they spend getting the test and any associated travel costs. Additionally, it appears that employers will meet their obligations under the ETS if they make a free test available to employees as described here, even if some employees ultimately refuse to take the test offered.
Exclusion Pay for Employees
What we already knew: Employers must “[e]xclude from the workplace employees who test positive for COVID-19 and employees with COVID-19 exposure.” For these purposes, a “COVID-19 exposure” is defined as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period.”
If the infection or exposure is work-related, the employee is entitled to receive “exclusion pay and benefits,” meaning the employer is required to “maintain [such] 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 we learned: To receive exclusion pay and benefits, an employee must be “able and available to work.” For instance, an employee who is unable to work as a result of COVID-19 symptoms and/or who is receiving temporary disability benefits through workers’ compensation is not “able and available to work.”
What we still don’t know: Cal-OSHA still has not provided clear guidance on how to overcome the rebuttable presumption (which applies to certain categories of employers, and which we previously blogged about here) that a COVID-19 infection or exposure is work-related. The only guidance Cal-OSHA has provided states that employers should “conduct comparable investigations and produc[e] comparable evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace.”
What we knew: The ETS apply to most California employees. However, there are limited exceptions, such as employees who are covered by the Aerosol Transmissible Diseases (“ATD”) Standard. An employee in a single workplace cannot be subject to both standards at the same time.
What we learned: Emergency responders – such as firefighters – who are governed by the ATD Standard cannot also be subject to the ETS at the same workplace. Within a given workplace, some firefighters may be covered by ATD Standards, while others may be subject to the ETS. The key takeaway here is that an employer cannot designate its entire workforce as exempt from the ETS because some of its employees are covered by the ATD Standard.
What we already knew: The ETS became effective immediately after they were adopted on November 30, 2020, meaning employers were expected to be in compliance with the very complex requirements as of that date.
What we learned: Cal-OSHA seems to have recognized the burden that implementing the ETS places on employers. In what appears to be an effort to relieve some of the pressure on employers, Cal-OSHA has stated that it will consider an employer’s “good faith” efforts to comply with the ETS before issuing a citation for failure to comply with the ETS.
Despite this updated guidance, there are still many unanswered questions about the ETS, and we therefore expect that Cal-OSHA will continue to update its Frequently Asked Questions page and/or issue other types of guidance on the ETS. When such updates become available, we will blog about them here.