What Employers Need to Know about the Pay and Benefits Continuation Elements of Cal/OSHA’s COVID-19 Emergency Rule

By Mark TrappAndrew 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: Continue reading