As Cal/OSHA barrels towards creating a new non-emergency COVID-19 standard, the board that writes these regulations has decided to drop a highly contentious provision: exclusion pay.
Under the current emergency standard, employers who exclude workers due to a COVID-19 outbreak in the workplace are required to pay them exclusion pay for the time they are away from work.
The Cal/OSHA Standards Board had been considering including the same provision in the standard that will take effect Jan. 1, 2023, but after a meeting with stakeholders (including employer and labor representatives) it reversed course. Labor had been pushing for the provision to be included in the new standard.
Concerns over the inevitable months-long delay that would have impacted implementation of the new standard pushed the board to remove the exclusion-pay requirement going forward.
Exclusion pay is similar to COVID-19-specific sick leave, except it also applies to workers who have been excluded from the workplace because they may have been in contact with a colleague who may have had the disease while at work.
Cal/OSHA’s requirement of exclusion pay is broad:
“Employers shall continue and maintain an employee’s earnings, wages, 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.”
This blanket requirement has essentially created unlimited paid sick leave related to COVID-19 throughout the pandemic for both positive cases and those excluded due to an exposure.
Exclusion pay is not due if the employer can show that the employee’s COVID-19 exposure was not work-related, which is almost impossible for an employer to prove.
The proposed non-emergency standard generally provides a more flexible approach for employers in addressing COVID-19 in the workplace as part of their regular Injury and Illness Prevention Program.
Other changes in the proposed standard include:
- The definition of “close contact” would be the same as that of the California Department of Public Health, but would add that such close contact applies whether or not face coverings are used.
- Decreasing the time for a person to be considered a returned case from 90 days to 30 days.
- Employers would no longer be required to evaluate whether their method of ventilation is adequate to reduce risk. The proposed language would require the methods of ventilation to be “effective.”
- Employers would no longer be required to report to the local health department, but would still be required to track all COVID-19 cases with name, contact information, occupation, location of work and last day at workplace, as well as the date of the positive test or diagnosis.
Major outbreaks would no longer require enforcement of a 6-foot rule.
The Standards Board will vote on the regulation at its December 15 meeting, and the standard is expected to take effect at the beginning of next year. It will sunset after two years; in the meantime, the board will start work on a permanent airborne infectious disease standard for general industry that would cover COVID-19.
However, employers should read up on the proposed standard and adjust their prevention plans accordingly in time for Jan. 1, 2023.
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