There is no doubt that as a California employer, it has been difficult to maneuver your way through the challenges during the past year of the COVID-19 pandemic. One of these challenges you may have encountered is the Cal/OSHA Emergency Temporary Standards (ETS) on COVID-19 infection prevention in the workplace which was published in November 2020. Many employers were confused and had questions on the logistics of these standard and how to effectively implement them into their workplace.
To assist employers in their understanding of the ETS, Cal/OSHA released Frequently Asked Questions on January 8, 2021. Unfortunately, there was still a lot of confusion, additional questions and even lawsuits by agriculture employers which led to updated FAQs from the agency on January 26 and again on February 26.
The most recently updated FAQs include more than double the number of questions that were answered previously and provides guidance on the following topics:
- Exclusion Pay
Free Testing to Employees
A main area of confusion for employers since the ETS was adopted has been around the requirements for COVID-19 testing. This is because Cal OSHA’s ETS uses inconsistent language to discuss requirements (e.g., “offer” vs. “provide” in the context of required testing). The ETS also explicitly conveys that “all employees in the exposed workplace shall be tested and then tested again one week later,” raising questions as to whether an employer must require employees to undergo testing or exclude them from the workplace if testing is refused when required.
Employers are required to “offer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.” The New FAQs indicate that employers can satisfy this requirement by directing their employees to a free testing site, such as those run by the city or county. However, employers must pay employees for the time to travel to the testing site and to get tested and reimburse employees for travel costs (e.g., mileage or public transportation costs). The New FAQs explain that the test does not need to occur during normal working hours if employees are paid for the testing and travel time.
Newest FAQ update better explains where an employer can find testing for employees: The FAQ update now provides details on two main sources for employee testing, stating as follows:
- At the California Department of Public Health or the National Association of County and City Health Officials websites, click on the county or city health department in the area where you would like employees to be tested. Many local health departments maintain websites with up-to-date information on testing locations. Click on the appropriate health department’s website and search for testing sites. Follow instructions to identify testing locations and schedule a test. All counties offer free testing for individuals at designated testing sites. For larger numbers of employees, employers may also choose to partner with the State of California Valencia Branch Laboratory to set up on-site testing (visit the Valencia Branch Laboratory website for more information).
- In the alternative, an employer can partner with a medical provider to establish a testing program. Some providers offer on-site testing of employees.
Penalties and Enforcement
Employers were required to immediately comply with the ETS as of its effective date of November 30, 2020. Cal/OSHA gave employers a grace period until February 1, 2021 in which they would cite penalties but not enforce monetary penalties for violations of the ETS.
Now that the grace period has ended, Cal/OSHA has ramped up citations for violations relating to COVID-19, indicating it will start to assess penalties relating to the ETS on February 2, 2021. Since August 2020, Cal/OSHA has issued more than $2.5 million of proposed penalties relating to COVID-19 violations.
Under the ETS, employers must continue to provide pay and benefits to employees who are able and ready to work but excluded from the workplace due to workplace COVID-19 exposure (“exclusion pay”). Exclusion pay typically lasts for the quarantine period of up to 14 days, but employers do not need to provide exclusion pay to employees who are unable to work because of their COVID-19 symptoms. Additionally, employers do not need to provide exclusion pay to employees who are unable to work because of reasons other than protecting persons at the workplace from possible COVID-19 transmission (e.g., business closure, caring for a family member, disability, or vacation).
Employers do not need to provide exclusion pay if they can establish an employee’s COVID-19 exposure was not work related. There is a presumption that exposure is work related. Employers can rebut that presumption by conducting a “comparable investigation” and producing “comparable evidence” to show it is more likely than not that the employee’s COVID-19 exposure did not occur in the workplace. One interpretation of this guidance is that employers may conduct an investigation into an employee’s exposure similar to the investigation that employers must conduct if there is a case of COVID-19 in the workplace, including:
- Determining the day and time the COVID-19 case was last present in the workplace,
- Determining the date of any positive COVID-19 test or diagnosis,
- Determining the date the COVID-19 case first experienced any COVID-19 symptoms,
- Evaluating the activities of the COVID-19 case, and/ or
- Evaluating all locations at the workplace the COVID-19 case visited during the high-risk exposure period.
Impact of Vaccines
According to the New FAQs, all prevention measures under the ETS must be continued even for vaccinated persons. The impact of vaccines will be addressed in future revisions to the ETS.
Additional Guidance From Cal/OSHA
Cal/OSHA will continually update the COVID-19 Emergency Temporary Standards Frequently Asked Questions, especially as vaccines play a larger role in COVID-19 prevention.
Solutions for Compliance
Barkley offers a complimentary Compliance tool that creates a customized Written COVID-19 Prevention Program and other documentation required by the ETS based on the latest Cal/OSHA guidance. Barkley’s Compliance Check has helped many companies assess their return-to-work readiness, generate the return-to-work policies and other key documents, track employee health to keep sick employees home, and assist employers in avoiding costly citations.
If you would like assistance on any of these topics, we are here to help. Please contact your Barkley advisor or reach out to us at (805) 483-1995 or firstname.lastname@example.org.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general information purpose only. You should always consult an experienced attorney if you have any questions about your business, policies, or your particular circumstances.
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