Cal/OSHA Guidelines: FAQs about FAQs?
Gaining an understanding of regulations can be a daunting task on any given day. But you can bet that if an agency is having to issue a new set of Frequently Asked Questions to explain its first set of Frequently Asked Questions, you have reached a new level of complexity. And that is exactly what has happened with Cal/OSHA’s FAQs on the recently adopted COVID-19 Prevention Emergency Temporary Standards (ETS) for the workplace.
The new Cal/OSHA emergency standards were filed on November 30, 2020, and became effective and enforceable that same day. Simultaneously, Cal/OSHA released FAQs to go along with these standards to help guide employers through the quagmire found in sections 3205 through 3205.4 of Title 8, including how to draft a COVID-19 Prevention Plan. These FAQs even got their own table of contents!
Just days ago, on January 8, 2021, the FAQs were updated to clarify the earlier FAQs. A footnote was added which provided that 7 new subheadings were added along with 38 new questions and answers, for a total of 69 questions and answers. Here are some highlights of several topics that have now been clarified by Cal/OSHA:
In the first round of FAQs, Cal/OSHA listed the employer’s testing obligations:
- Inform all employees on how they can obtain testing. This could be through the employer, local health department, a health plan, or at a community testing center. The only obligation to all employees is to provide information.
- Offer testing to an employee at no cost and during working hours in the event of a potential COVID-19 work-related exposure.
- Provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees in an “exposed workplace” during an outbreak.
- Testing must be provided in a manner that ensures employee confidentiality.
Because of the apparent confusion that ensued, the FAQs were updated to add guidance to the above list. First, employers had been uncertain about the obligatory versus permissive nature of the terms “offer testing” and “provide testing”. The FAQs now make clear that these terms are the same. (FAQ 28) Second, employers do not have to provide testing to employees at their work location, but may provide testing to employees at a testing site elsewhere. (FAQ 29) And third, employers can send their employees to a free testing site, such as a county-run location, as long as employees do not incur any cost for testing. Thus, the employer would have to pay the employee wages for the testing and travel time and reimburse the employee for travel costs. (FAQ 30)
EXCLUSION PAY AND BENEFITS
It appears that the ETS’ exclusion pay and benefits section caused confusion among employers since nine new questions and answers were added by Cal/OSHA. The standards state that “[f]or employees excluded from work…and otherwise able and available to work, employers shall continue and maintain an employee's earnings, 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.”
The guidance clarified that employees unable to work because of their COVID-19 symptoms are not eligible for exclusion pay and benefits, as outlined above, but might be eligible for Workers’ Compensation or State Disability Insurance benefits.
So what does “otherwise able and available to work” mean? The FAQs actually answer this question in the converse with examples of employees who are NOT “otherwise able and available to work,” thus unable to qualify for exclusion pay. These include:
- If an employee is unable to work because of his or her COVID-19 symptoms (FAQ 52)
- If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. (FAQ 53)
- If the employee with COVID-19 exposure from the workplace is unable to work because of reasons other than protecting persons at the workplace from possible COVID-19 transmission (e.g., a business closure, caring for a family member, disability, or vacation) (FAQ 55)
- An employee receiving temporary disability benefits through workers’ compensation (FAQ 59)
The ETS does not require employers to pay workers who are excluded from work if the employer can show that the employee’s COVID-19 exposure was not work related. SB 1159 provides a rebuttable presumption for certain workers and workplaces that an employee’s COVID-19-related illness is an occupational injury entitling the employee to workers’ compensation benefits. (FAQs 56 and 57)
GRACE PERIOD FOR ENFORCEMENT
Cal/OSHA provided nervous employers with some relief regarding the timing of compliance. Although all employers are expected to comply with the new ETS provisions, Cal/OSHA noted that it would take into consideration the “good faith efforts” of employers to comply. Monetary penalties will not be assessed during the first two months that the rules are in effect (through February 1, 2021) provided the employer is not in violation of other prevention programs already in place before November 30, 2020. (FAQ 10) This is, however, a good reminder to employers that the clock is ticking on this grace period and it is now time to make sure that proper COVID-19 Prevention Plans are drawn up.
If you need assistance with these new standards, contact the experts at McKague Rosasco LLP.
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