FAQs released yesterday by the State of California are must-read guidance for employers in complying with Cal/OSHA’s new Emergency COVID-19 Prevention Regulation. Employers should make distilling from the FAQs what is relevant to their operation an immediate priority, as the regulation became effective and enforceable on Monday, November 30, 2020. The regulation is the most detailed, onerous body of COVID-19-related requirements imposed on California employers to date.
[A robust summary of the regulation may be found in my earlier post here.]
What the FAQs Tell Employers and Their Counsel
The California Department of Industrial Relations released the FAQs. Highlights include the following:
- Yes, employers must provide paid leave to COVID-19 impacted employees!
The regulation mandates that employers exclude from the workplace employees who are “COVID cases” and those with “COVID exposure,” as defined by the regulation, until they satisfy criteria to return safely. Importantly, the regulation also provides that, during the time an employee is excluded from the workplace, the employer must “maintain [their] 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.”
While the regulation arguably leaves unclear whether employers must provide such employees only unpaid, job-protected leave, the FAQs advise that employers must provide paid, job-protected leave for the period the employees are excluded:
“Q: Must an employer pay an employee while the employee is excluded from work?
A: If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments. . . These obligations do not apply if an employer establishes the employee’s exposure was not work-related.”
In short, according to the FAQs, the regulation imposes a new variety of paid leave for employees related to COVID-19, namely, “exclusion pay” under the new Cal/OSHA regulation. Moreover, it appears that circumstances can arise where current state and federal law will not require employers to pay any variety of paid sick leave, but the regulation will require them to pay exclusion pay.
Where employers refuse to pay exclusion pay on the grounds that employees’ exposure to the virus was not work-related, employers may face risk. In taking that position, employers are likely to bear a burden of demonstrating where, outside of work, employees were exposed or, at the least, that the employees were not exposed at work. Such proof may be difficult to put forward. Of course, where employees admit they were exposed off duty and credibly explain the circumstances of exposure, employers not paying exclusion pay will carry less, if any, risk.
- Employers Should Prioritize Eliminating “Hazards” and Complying with Testing Requirements
Cal/OSHA adopted the regulation through an emergency rule making procedure that left employers what is widely considered insufficient time to prepare to meet the November 30 effective date. The FAQs, fortunately, give employers some insight into where they should begin their compliance efforts.
“Q: What if an employer is unable to comply with the [regulation] by” the November 30, 2020 effective date?
“A: . . . [As employers work toward compliance,] Cal/OSHA enforcement personnel will consider an employer’s good faith efforts in working toward compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential.”
In other words, Cal/OSHA expects employers to be at work now preparing their written COVID-19 Prevention Programs, but to prioritize identifying and eliminating workplace “COVID-19 hazards,” as defined in the regulation, and building out systems to provide employees free-of-charge COVID testing, as called for by the regulation.
- The Time Employees Spend being Tested is Compensable Time
While the regulation requires that employers offer COVID-19 testing at no cost during working hours to all employees with potential workplace COVID-19 exposure, the FAQs go one-step further and make clear that “the time an employee spends being tested is considered compensable hours worked.”
- Employers may Reimburse Employees for the Cost of Face Coverings and not Supply Them
The regulation mandates that employers “provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person . . .” The FAQs, however, give employers the option of either providing employees with face coverings or reimbursing employees for the cost of their buying face coverings.
- Non-Employees and Employees Alike are Included in Determining an “Outbreak”
The regulation imposes a demanding protocol on employers where “there are three or more COVID-19 cases in an exposed workplace within a 14-day period” or a local health department identifies the workplace as the location of a COVID-19 outbreak.” The regulation does not make clear whether non-employee COVID-19 cases in the workplace are to be taken into account in determining whether the “three or more cases” threshold is met.
The FAQs answer the question: “Any confirmed COVID-19 case [whether employee or otherwise] who has been in the workplace during the high-risk exposure period counts towards the three-case threshold.”
A Template for COVID-19 Prevention Plans is Now Available
At page 2 of the FAQs, the Department of Industrial Relations (DIR) includes a link to a template employers may use at least as an outline in beginning to prepare the written COVID-19 Prevention Plan required under the regulation. The template is generalized and will likely need to be customized employer-by-employer.
Cal/OSHA will Continue to Develop COVID-19 Prevention Requirements and Guidance
The DIR announced that the FAQs will be expanded on an ongoing basis.
The DIR also announced that it will conduct a stakeholder meeting this month to explain the regulation, answer questions and receive feedback on the regulation. A meeting date has not yet been made public. An advisory committee meeting will be scheduled soon after that, a move that may signal Cal/OSHA’s intention to move forward with a regular rulemaking process for a permanent COVID-19 Prevention Regulation.
The DIR also announced that Cal/OSHA is developing training on the regulation that will be delivered via webinars.
The FAQs may be found here.