The Fed/OSHA Emergency Temporary Standard (ETS) was again stayed by the Supreme Court on January 13th, having been in effect for four days since January 10th. However, this might not represent the final word on whether OSHA can enforce the ETS. Additionally, recall that Cal/OSHA still has an active ETS and their revised COVID-19 Prevention Plan goes into effect Friday, January 14th.

So what does that mean for employers?

Below is the recorded webinar where Casandra Fullerton, Abe Jabhan, Anthony Poston and special guest Jennifer Lippi, SR. HR Consultant at SilversHR, host a one-hour update on the status of the ETS and what employers need to do in the short term to comply with existing regulations, while also planning long-term risk management goals.

CLICK HERE FOR THE WEBINAR SLIDES

WEBINAR Q & A

Answers provided by ESM & Jennifer Lippi, Sr. Hr Consultant at SilversHR.

Disclaimer: The recommendations below are based on limited information made available during the webinar, and do not purport to refer to or guarantee compliance with local, state or federal regulations. It is solely the responsibility of the employer to make sure that their risk management efforts are compliant with all applicable laws.

Q: to verify, outbreak three or more is workplace only contact situations, not three or more staff that are positive but from outside of workplace exposures in their personal lives.

A: First off, I should make clear that the definition of “outbreak” will be different depending on if we are talking about Cal OSHA guidance or workers’ compensation rules.  Here is how Cal OSHA defines “outbreak:” § 3205.1. Multiple COVID-19 Infections and COVID-19 Outbreaks.

a) Scope. {1) This section applies to a workplace covered by section 3205 if three or more employee COVID-19 cases within an exposed group, as defined by section 3205(b), visited the workplace during their high-risk exposure period at any time during a 14-day period.

It just requires that they are employee COVID cases, as long as the employees have been in the workplace (it would not apply to those who work purely remotely). It does not speak to whether the cases are work-related or not. So, my understanding is that you DO count employee positives that resulted from non-work-related exposures. It is not dependent on where the employee contracted it. This may also be different depending on how a local health department defines outbreak or for workers compensation purposes.

Q: If an employee has been working from home, informs the employer that they have had close contact- is the employer still required to pay for the Covid Test and time?

A: If the employee is purely remote and never comes into the office, you would not need to pay for COVID time and testing.

Q: Does an employer have to maintain an employee's earnings and benefits under section 3205(c)(9)(C) if the employee is unable to work because of reasons other than COVID-19 exposure at work?

A: No, the employer need not maintain the exposed employee's earnings and benefits if the excluded employee is unable to work because of reasons other than exposure to COVID-19 at work (e.g., a non-work exposure, business closure, caring for a family member, disability, or vacation). Such employees may be eligible for other leave, including sick leave, or other benefits such as Disability Insurance, Paid Family Leave, or Unemployment Insurance Benefits.

Q: How is exclusion pay calculated for employees excluded from the workplace due to exposure to COVID-19 at work?
A: The rate of pay for exclusion pay is an employee’s regular rate of pay for the pay period in which the employee is excluded. These employees are entitled to exclusion pay, depending on the length of the required exclusion period and how many days they were scheduled to work during that exclusion period. Employees must be paid no later than the regular payday for the pay period(s) in which the employee is excluded.

Q: How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?
A: An employee would typically receive pay for the period the employee is excluded, which could be 10 or more days. If an employee is out of work for more than a standard exclusion period based on a single exposure or positive test, but still does not meet the regulation's requirements to return to work, the employee may be entitled to other benefits, such as Temporary Disability, Disability, or Supplemental Paid Sick Leave.

Q1: “Can employer require Employee to use regular Sick Pay for ACTUAL Covid case (not Close Contact)”

Q2: “Is on duty and travel time required for employees getting tested or vaxxed if the employer is NOT requiring vaccination?”

A: To answer your first question, an employer may never require an employee to use state mandated California paid sick leave under the Healthy Workplaces Healthy Families Act.  The employee gets to decide if/when to use it.  If your organization has a separate supplemental sick leave policy that is distinct from the sick leave required by the Healthy Workplaces, Healthy Families act, you can require them to use that type of sick leave 

To answer your second question, if the employer requires an employee to obtain a COVID-19 test or vaccination, then the employer must pay for the time it takes for the testing or vaccination, including travel time. If you are not mandating vaccination, you would not have to pay for time/vaccination.  Keep in mind that from January 1, 2021 to September 30, 2021, California required employers with 26 or more employees to provide their workers up to 80 hours of supplemental paid sick leave (SPSL) for COVID-19 related reasons, which included obtaining the vaccine.  This expired on 9/30/21. 

Q: “Is an at home test an acceptable method to prove a negative result?”

A: Under the second adopted Cal OSHA ETS, at home rapid tests are acceptable to prove a negative result.  Cal OSHA’s rule is that home COVID-19 tests are permissible, but the employer or an authorized telehealth provider must observe the testing in real time (essentially proctored).  We are hearing that doing this via Zoom or Facetime is likely acceptable.  The revised ETS says that COVID tests meet the guidelines if they are:

(C) Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.

You can find the revised ETS here: https://www.dir.ca.gov/oshsb/documents/Dec162021-COVID-19-Prevention-Emergency-txtcourtesy-2nd-Readoption.pdf

Q: What was the effective date of the exclusion pay?”

A: The exclusion pay requirement was in the first version of the Cal OSHA ETS which was effective on November 30, 2020.  The ETS has been revised twice since then but has always continued to include exclusion pay.  We were hoping it might be omitted from the latest adoption, but no such luck.  You can find all of the versions of the ETS here: https://www.dir.ca.gov/dosh/coronavirus/ETS.html

Q: If an employee has been working from home, informs the employer that they have had close contact- is the employer still required to pay for the Covid Test and time?”

A: More clarification is needed on what is meant by working at home.  Is the employee purely remote and never comes into the office?  If this is the case, you would not need to pay for COVID time and testing. The ETS says employers must:   “Make COVID-19 testing available at no cost, during paid time, to all employees of the employer who had a close contact in the workplace.  Employers shall make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated, during employees' paid time. Assuming the employee works remotely, they would not have a close contact in the workplace.  In addition, the scope of the ETS says that employees working from home are not covered by the ETS.