Five Frequently Asked Questions About Cal/OSHA Temporary Emergency Standards

Cal/OSHA Emergency Temporary Standards (“ETS”) apply to most California workplaces, with very few exceptions. The ETS, enacted in November 2020, establishes requirements for California employers regarding COVID-19 workplace exposure protocols and actions to be taken when employees are exposed to or contract COVID-19 in the workplace. We’ve written extensively about the ETS before, but wanted to focus on five common questions we receive from employers about the ETS and the recent revisions to the ETS, which came into effect on January 14, 2022:

1. Which employers are covered by the ETS?

The ETS applies to all employers, employees and workplaces with the following exceptions:

  • Places of work where there is only one employee who has no contact with other people.
  • Employees working from home.
  • Employees covered by the Aerosol Communicable Diseases Ordinance (Cal. Codereg., Tit. 8, § 5199) (§ 5199).
  • Employees working from an employee-chosen location that is not under the employer’s control (e.g., an employee telecommuting from a coffee shop or a friend’s house).

2. Does an employer have to pay exclusion money if the workplace is closed due to COVID-19 or other reasons?

Cal/OSHA’s updated FAQs (available here: https://www.dir.ca.gov/dosh/coronavirus/ETS-FAQ2_01.24.2022-AF.pdf) provides that no exclusion money is required in the event of a company closure. The FAQ states, “No, the employer need not maintain the affected worker’s income and benefits if the excluded worker is unable to work at work for reasons other than exposure to COVID-19 (e.g., caring for a family member, disability or vacation). These employees may be entitled to other leave of absence, including sick leave, or other benefits such as disability insurance, paid family leave, or unemployment insurance benefits.”

3. Is at-home testing acceptable for employee testing needs?

Cal/OSHA accepts at-home testing and states:

To meet the testing requirements of the ETS, over-the-counter (OTC) testing may not be both self-administered and self-read unless observed by the employer or an authorized telemedicine regulatory agency. This independent validation can be achieved in a number of ways. For example, the employer can validate the test through the use of a proctored test that is video monitored by a licensed, authorized telemedicine provider or by a point-of-care testing provider. Alternatively, the employer could supervise the OTC test himself, including via video. Another option to meet the requirement that a test is not “self-readable” is to use an OTC test that provides digital reporting of results with date and time stamps. These tests do not require observation by an employer or telemedicine regulator.

See question #2 on page 11 – https://www.dir.ca.gov/dosh/coronavirus/ETS-FAQ2_01.24.2022-AF.pdf

4. Can employers require employees to take paid sick leave instead of exclusionary pay?

Employers may not require workers to take their California paid sick leave under Section 246 of the Labor Code, but may require workers to take any other paid sick leave that is in addition to the California paid sick leave requirements is applicable. The FAQ states: “Employers who offer a separate and additional paid sick leave policy to that required by the California Paid Sick Leave Act (Section 246 of the Labor Code) may require their employees to use that separate sick leave within the legally permissible framework. However, an employer cannot require that the worker take the standard sick leave required under the California Paid Sick Leave Act, even if workplace exposure has occurred and the employer is required to exclude workers under the ETS.”

5. How can I find out more about the ETS?

The Cal/OSHA website has various FAQs and materials for employers. Cal/OSHA’s “Frequently asked questions about COVID-19 can be found here.

“Posters, educational materials, model programs and other resources related to COVID-19” can be found here.

Cal/OSHAs The COVID-19 Model Prevention Program (updated January 14, 2022) that most employers are required to implement can be found here.

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