CAL/OSHA Clarifies COVID-19 Exclusion Pay Requirements

In early May, the California Division of Occupational Safety and Health (Cal/OSHA) issued a clarifying FAQ confirming that employers must pay exclusion pay, in a timely manner, to employees who are excluded from work due to COVID-19 workplace exposure and may not wait for workers' compensation or temporary disability payments to be made to affected employees. Cal/OSHA published this new FAQ after Davis Wright Tremaine sought clarification from the agency.

Following Cal/OSHA's publication of the updated ETS and FAQs on May 6-7, 2022, we learned that many attorneys who reviewed Cal/OSHA's updates concluded that an employer was not required to provide "exclusion pay" to employees who had applied for any form of disability benefits or workers' compensation benefits. We believed that this commonly shared conclusion should be vetted with Cal/OSHA and sought clarification from the agency. In response, Cal/OSHA published the new FAQ, which is No. 1 in the category of Exclusion Pay. The new FAQ (under the "Exclusion Pay and Benefits" category) now reads:

• 1. Q: If an employee is excluded from work because of workplace exposure under the ETS, is the employee eligible for exclusion pay?
  
  A: Yes. An employee who is excluded from work because of a workplace COVID-19 exposure should receive exclusion pay if: 1) the employee is not assigned to telework during that time and 2) the employee is not receiving Disability Payments or Workers' Compensation Temporary Disability Payments at the time of exclusion. (link here)

Cal/OSHA's updated FAQ clarifies and confirms that employers may not lawfully refrain from timely payment of exclusion pay (through regular payroll) simply because an employee may have filed or seeks to file a claim for workers' comp or temporary disability benefits. Rather, employers are only excused from timely payment of exclusion pay when the employee is actually receiving wage replacement benefits for the covered period of their exclusion from the workplace.

On a final note, employers are reminded that, while employees may not be asked or forced to use their state-protected, accrued paid sick leave or the COVID-19 supplemental paid sick leave for exclusion pay, employers may require excluded employees to use accrued and unused paid sick leave which is in excess of these protected sick leave banks.

DWT'S OSHA team is available to advise and assist with complying with this constantly evolving and complex legal area.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.