On November 30, 2020, California’s Division of Occupational Safety and Health, more commonly known as Cal/OSHA, adopted COVID-19 Prevention Emergency Temporary Standards (ETS) for California. Among other topics, the ETS required that employers develop a written COVID-19 Prevention Program and provided guidance on how employers should address COVID-19 cases and outbreaks in the workplace. Since Cal/OSHA issued its ETS, the California workplace landscape has changed dramatically, with large-scale vaccinations for all ages and employees returning to work across the state.
On May 7, 2021, Cal/OSHA submitted significant proposed revisions to the ETS, which the Cal/OSHA Standards Board will consider at its May 20, 2021, meeting. The proposed revisions include changes across almost the entire ETS regulatory landscape, including the following:
Workplace Exclusions and Exceptions
As under the current ETS, the proposed revisions require that employers exclude COVID-19 cases and employees who have had close contact as the regulations define COVID-19 cases and close contact. However, because Cal/OSHA has revised Section 10 to consider the impact of vaccines, employers do not need to exclude the following employees:
Exclusion Pay and Exceptions
Employers must pay all excluded employees their full wages as if the employer had not excluded them. Employers may use employer-provided sick leave but only to the extent provided by law. Because California Labor Code Section 246 allows employees (not employers) to choose how they use regular California paid sick leave, the phrase “to the extent provided by law” suggests that employers cannot force employees to exhaust California paid sick leave before the employer provides exclusion pay.
Employers need not pay exclusion pay in the following two situations:
Trade associations and labor groups are expected to offer public comment at the Cal/OSHA Standards Board meeting on May 20, 2021 and will likely request clarification on a sunset of the COVID-19 regulations as well as other interpretations. California employers that adopted the required COVID Prevention Program may want to consider updating their plans to reflect any adopted changes.