1. Labor Commissioner's Office

FAQs on Exclusion Pay Under the Emergency Temporary Standard

Cal/OSHA’s Emergency Temporary Standards (ETS) on COVID-19 Prevention require employers to exclude employees from the workplace under certain circumstances. While the employee is excluded, their employer must maintain their pay and benefits. For more information on the ETS and whether it applies to your workplace, refer to Cal/OSHA’s Frequently Asked Questions.

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 was excluded from work because of a workplace COVID-19 exposure should receive exclusion pay if: 1) the employee was not assigned to telework during that time; and 2) the employee did not receive Disability Payments or Workers’ Compensation Temporary Disability Payments during the exclusion period.
2. Q: How does 2022 COVID-19 Supplemental Paid Sick Leave (2022 SPSL) law interact with the ETS?
   A: 2022 SPSL entitles covered employees in the public or private sectors who work for employers with 26 or more employees to up to 80 hours of 2022 COVID-19 related paid sick leave from January 1, 2022 through September 30, 2022, with up to 40 of those hours  available only when an employee or family member tests positive for COVID-19.
   
   Unlike exclusion pay available under the ETS, employees need not have been exposed to COVID-19 at work for 2022 COVID-19 Supplemental Paid Sick Leave to apply. Unlike 2021 SPSL, employers may not require employees who are excluded from work under the ETS to first exhaust 2022 COVID-19 Supplemental Paid Sick Leave.
   
   Additional information on 2022 COVID-19 Supplemental Paid Sick Leave is posted on topic-specific FAQs.

3. Q: Can employers require employees who are excluded due to workplace exposure to take paid sick leave under the ETS?
   A: Employers that provide a paid leave policy that is separate and in addition to the paid sick leave policy required by California’s Paid Sick Leave law (Labor Code section 246) may require their employees to use that separate sick leave as permitted by law. An employer may require an employee to use any supplemental leave available to the employee under the 2021 COVID-19.

   Supplemental Paid Sick Leave law (Labor Code section 248.2). However, an employer cannot require the employee to use the standard paid sick leave mandated under Labor Code section 246, even when there has been a workplace exposure and the employer is required to exclude employees under the ETS.

4. 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 receive pay for the period the employee is excluded which would typically be 5 to 10 days but may be longer in some circumstances. 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.
5. Q: What rights do employees have if their employer retaliates against them for requesting exclusion pay?
   A: Employees are protected under various California statutes prohibiting retaliation for exercising workplace rights. Employees should seek assistance from the Labor Commissioner’s Office if they have questions about retaliation or want to file a retaliation complaint.
6. 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.
7. Q: The ETS states that an employer is not required to provide exclusion pay if the employer can demonstrate that an employee's “close contact” was not work related. What does that mean?
   A: 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. In such circumstances, employers may have other legal or contractual payment obligations, but pay and benefits are not mandated by section 3205.
8. Q: How does an employer show that a COVID-19 exposure is not work related?
   A: Proving that COVID-19 exposure is not work related to avoid the ETS' exclusion pay requirement involves an employer conducting an investigation and producing evidence to show it is more likely than not that an employee's COVID-19 exposure did not occur in the workplace.
9. 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.
10. Q: Can Cal/OSHA enforce the exclusion pay provision?
    A: As with any violation, Cal/OSHA has the authority to issue a citation and require abatement for violations of Cal/OSHA standards.
11. Q: If an employee is excluded from work because of workplace exposure under the ETS and is not paid, where can the employee file a claim?
    A: If the employee did not receive pay for the exclusion period, the employee can file a claim with the Labor Commissioner’s Office. The Labor Commissioner’s Office can accept claims only for those employees who have been excluded from the workplace due to exposure at work.
12. Q: What if an employer does not exclude an employee from the workplace who was exposed to COVID-19?
    A: The ETS requires employers to exclude workers who had a close contact to persons with COVID-19. If an employer has improperly failed to exclude employees under the ETS, employees should contact Cal/OSHA: File a Workplace Safety Complaint (ca.gov). For more information, see Cal/OSHA’s COVID-19 Guidance and Resources.
13. Q: How can an employee file a claim for exclusion pay with the Labor Commissioner’s Office?
    A: The employee may file an individual wage claim for exclusion pay with the Labor Commissioner’s Office. Alternatively, the employee may file a Report of a Labor Law Violation (RLLV) with the Labor Commissioner’s Office. A RLLV is a claim that alleges a systemic violation of law that affects several individuals. The Labor Commissioner’s Office in such a case would evaluate whether the report involved the whole workforce and whether the Labor Commissioner’s Office bring claims on behalf of the entire workforce or direct employees to file individual claims.
14. Q: Can employees qualify for Workers’ Compensation if they were exposed to COVID-19 in the workplace and test positive or are unable to work due to COVID-19 related symptoms?
    A: Employees who test positive for COVID-19 or are unable to work due to COVID-19 and believe they contracted COVID-19 at work should consider filing a Workers’ Compensation claim with their employer. For more information, see the Division of Workers’ Compensation COVID-19 Guidance and Resources.

    Employees who have received Disability Payments or are covered by Workers’ Compensation and received Temporary Disability Payments are not eligible for exclusion pay.

15. Q: What pay or benefits may an employee be entitled to if they were exposed to COVID 19 outside the workplace?
    A: Employees may be entitled to other pay and benefits. Please see additional resources on various programs administered by the Labor Commissioner’s Office and other government agencies.

March 2022