Safe Reopening FAQs for Workers and Employers
2021 COVID-19 Supplemental Paid Sick Leave Expired on September 30, 2021
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. Employees taking 2021 SPSL as of September 30, 2021 may continue to take the leave they are currently on even if the entitlement extends past September 30, 2021. For more information, visit the Labor Commissioner’s webpage on the expiration of 2021 COVID-19 SPSL.
Updated: July 8, 2021
Protecting workers, employers and the public is absolutely critical to safely reopening workplaces.
These FAQs address many workplace-related issues as California reopens safely.
Employer Obligations to Keep the Workplace and Employees Safe1. Q: What safety and health precautions must employers provide their workers in response to COVID-19?
A: Employers must comply with the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), effective June 17, 2021, to protect workers from COVID-19, unless they are covered under the Cal/OSHA Aerosol Transmittable Diseases standard. The ETS sets forth requirements for employers relating to training, testing, face coverings, exclusion of employees with COVID-19 and those who had close contact with them, and more.
Cal/OSHA has updated its COVID-19 model prevention program for employers to use to comply with their obligations to develop and implement a written injury and illness prevention program to identify and eliminate workplace hazards and train employees on how to avoid those hazards, such as COVID-19.
Employers should review the standard and guidance relevant to their worksites in order to develop precautions and preventive measures applicable to businesses in that industry. In accordance with the guidance provided, each employer must implement a plan that is specific to its worksite, identifies all areas and job tasks with potential exposures to COVID-19, and includes control measures to eliminate or reduce such exposures.
2. Q: Which employers must comply with the COVID-19 emergency temporary standards (ETS)?
A: Refer to the Frequently Asked Questions about the ETS.
3. Q: What additional steps must my employer take to protect me and my co-workers if someone working at the worksite tests positive for COVID-19?
A: If an employee is diagnosed or tests positive for COVID-19, the employer must comply with the ETS. Employers and employees can find additional COVID-19 guidance on the CDPH Employees and Workplaces webpage.
Employees may be eligible for workers’ compensation, which includes medical treatment, temporary wage-replacement benefits, and, if applicable, benefits for any lasting disability from your work injury or illness that affects your ability to earn a living. SB 1159, effective September 17, 2020, provides that an employee’s illness due to COVID-19 may be presumed eligible for workers’ compensation benefits if specified criteria are met. This law remains in effect through January 1, 2023. The Division of Workers’ Compensation has information on this presumption posted online.
If a worker doesn’t qualify for the presumption of eligibility, the worker may still be eligible to receive workers’ compensation. The worker will need to meet certain threshold requirements, including proving that the COVID-19 illness arose out of employment.
If you would like to file a workers’ compensation claim, you may request a claim form from your employer. Additional information for those who suffered a work-related injury or illness is posted online.
4. Q: Must my employer exclude workers from coming to the workplace if they have symptoms or say they have been exposed to COVID-19?
A: Employers must comply with the ETS requirements for excluding employees from the workplace. Employers should also have procedures to screen employees for COVID-19 symptoms and must have a plan to keep other employees safe in the workplace.
As a precaution, employees who appear to have symptoms upon arrival at work or who become sick during the day should be separated immediately from other employees, customers and visitors, and sent home.
The ETS and CDPH Employer Guidelines for addressing workplace outbreaks provide additional requirements and guidance that employers need to follow to control the spread of COVID-19 in the workplace. Frequently Asked Questions about the ETS for workplace outbreaks and employee exclusion requirements are posted online.
If an employer excludes an employee from coming to the worksite, the employee may be eligible for paid leave under one of the following laws:
- 2021 California Supplemental Paid Sick Leave: This law extends up to 80 hours of paid sick leave to all employees who work for employers with more than 25 employees. The law is retroactive to January 1, 2021 and will be in effect through September 30, 2021. Employers must provide this leave when an employee is unable to work or telework due to any one of the following reasons:
- Caring for Yourself: The covered employee is subject to a quarantine or isolation period related to COVID-19 (see note below), or has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for a Family Member: The covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 (see note below) or has been advised by a healthcare provider to quarantine due to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
- Vaccine-Related: The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.
- Exclusion Pay under the Emergency Temporary Standards: If an employer of any size excludes an employee pursuant to the ETS, the employer must maintain that employee’s pay, benefits and other rights as if the employee had not been removed from the job, subject to limited exceptions. The employer must pay the employee, at their regular rate of pay, no later than the regular payday for the pay period(s) in which the employee is excluded. FAQs on the exclusion pay provisions in the ETS are posted online.
- California Paid Sick Leave under California Labor Code Section 246. California’s Paid Sick Leave law, which came into effect in 2015, provides for paid time off from the employer that can be used for COVID or non-COVID related illnesses, or preventive care for the employee or a family member and if the employee is a victim of domestic violence, sexual assault or stalking. Most workers are entitled to paid sick leave, earning one hour of paid leave for every 30 hours worked. The sick leave that employers are required to provide may be capped at 24 hours or three days per year, whichever is more, by a policy communicated to employees. To qualify for sick leave, a worker must work for the employer for at least 30 days within a year and complete a 90-day employment period before taking any sick leave. Additional information on how it applies to COVID-19 is posted online.
- Local Paid Sick Leave laws. Certain municipalities also have paid sick leave laws. If workers are subject to a local sick leave ordinance, the employer must comply with both state and local laws, which may differ in some respects. The employer must provide the leave amount that is most generous to the worker. Workers should consult with the relevant local enforcement agency for the locality in which they work for more information.
- Voluntary Federal Paid Sick Leave: Federal law currently provides tax credits for employers with less than 500 employees who provide COVID-19 related paid sick leave voluntarily. More information on the tax credits is available on the Internal Revenue Service FAQs.
Additionally, depending on the circumstances, the employer may be responsible for compensating the employee for time worked or for reporting to work when the worker works less than half their usual day (“reporting time pay”). Additional information on reporting time pay is posted online.
5. Q: What can I do if my employer is not complying with the ETS or not implementing guidance to protect workers and the public from getting COVID-19?
A: Employers in California have a duty to maintain a safe and healthy workplace, including furnishing and using safety devices and safeguards, and adopting practices that are reasonably adequate to make the workplace safe and healthy.
Employers are also required to have a system in place for employees to communicate with their employer about matters of workplace safety and health. If your employer is not implementing guidance to protect you, other workers, and the general public from COVID-19 at the workplace, you may raise concerns through your employer’s pre-designated channels of communication.
If needed, you may also file a complaint with the nearest Cal/OSHA District Office. The California Occupational Safety and Health Act of 1973 gives workers the right to file a complaint about workplace safety and health hazards. The name of any person who submits a complaint to Cal/OSHA must be kept confidential by law, unless the person requests otherwise.
Complaints about a hazard in your workplace can be filed by calling the Cal/OSHA district office nearest your work site, preferably during business hours. If you cannot call during business hours, you may also call during off hours. If you cannot call at all, you may e-mail your complaint to the respective district office.
Whether you choose to raise your concerns directly to your employer or by filing a complaint with the nearest Cal/OSHA District Office, the law prohibits your employer from discriminating or retaliating against you for raising concerns or complaints about safety or health conditions or practices at work for yourself or your co-workers.
6. Q: What should I do if I know I’ve been exposed to COVID-19 at work, but I do not have symptoms yet?
A: If someone at your worksite was diagnosed or tested positive for COVID-19, your employer must follow the ETS, which defines who is considered to have had “close contact” with the employee who tested positive for, or was diagnosed with, COVID-19. Your employer must comply with the exclusion provisions of the ETS, which include requirements to exclude employees who test positive for or are diagnosed with COVID-19 and certain employees who have had a “close contact.” If your employer requires you to come into work in violation of the ETS, you may file a complaint for retaliation.
If you know you have been in close contact with someone at work who was diagnosed or tested positive for COVID-19, but do not have symptoms, you should inform your employer. Your employer must follow the ETS requirements for testing. All workers must follow state and local public health orders, including any isolation and quarantine orders.
A summary of benefits for workers impacted by COVID-19 is posted online.
Additional FAQs on the ETS are also posted online.
7. Q: Must my employer require other workers and me to wear face coverings as part of workplace safety and health measures?
A: Complete details, including all requirements and exceptions on face coverings, can be found in the ETS and Guidance for the Use of Face Coverings. All workers must use face coverings in accordance with these requirements and be trained on their proper use and care.
8. Q: Must my employer pay for face coverings for use at my worksite?
A: California law requires employers to provide safeguards such as face coverings at no cost to workers when such safeguards are reasonably necessary to render the work and the worksite safe and healthful. Any face covering must cover the nose and mouth effectively. The circumstances under which face coverings must be worn are set out in the ETS and CDPH’s public health guidance referred to above.
The employer cannot charge workers for these face coverings even if the employer permits workers to wear these face coverings during non-work hours away from the workplace. The employer is under no legal obligation to allow workers to use employer-provided face coverings during non-work hours away from the workplace, when the employee is not on, entering or leaving the worksite or employer’s premises.
Under the ETS, the employer must provide respirators such as N95 masks to unvaccinated employees upon request, as detailed in the ETS FAQs.
9. Q: Must my employer require customers to wear face coverings as part of workplace safety and health measures?
A: Employers must continue to conduct site-specific evaluations in areas where COVID-19 transmission could occur in compliance with Cal/OSHA standards and guidance as described in question 1 above, including evaluating interactions between employees and any other persons, and places employees may congregate or interact with members of the public.
The employer should consult applicable state and local public health orders and develop procedures for how it will enforce face-covering requirements at its worksites. CDPH guidance requires the use of face coverings for individuals who are not fully vaccinated in indoor public settings, including customers, and for individuals in certain indoor settings regardless of vaccination status if required by CDPH order. As of June 15, 2021 those indoor settings include public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and shelters (homeless or emergency shelters and cooling centers).
However, some customers may not be required to wear a face covering due to specific health risks or due to another exception to the face covering requirements set forth above. Complete details are posted on the CDPH Guidance for the Use of Face Coverings.
Medical Checks, Testing, and Vaccinations
10. Q: Must my employer pay me for time spent at my employer’s worksite completing certain medical checks (including temperature checks) before beginning a shift?
A: Yes. Employers must pay workers for all hours worked, including time that a worker is under the control of the employer. Employers that require their workers to complete a medical check in order to begin a shift, even if it is recommended under public health orders, must compensate workers for that time worked.
The term “hours worked” means the time during which a worker is subject to the control of an employer, and includes all the time the worker is suffered or permitted to work, whether or not required to do so. Under this definition, one way to determine whether time a worker spends performing a task is compensable—that is, whether it is time “worked”—is whether the employer exercised control over the worker by requiring the worker to perform that task.
If an employer requires that all workers perform a medical check (such as a temperature check) onsite before beginning a shift, the time completing the medical check, including any time waiting in line, would constitute time worked. This requirement applies even if such tasks were performed pursuant to a state or local public health guideline, because the check is done at the request and thus under the control of the employer.
11. Q: If my employer requires me to perform a medical check (including a temperature check) onsite before the start of a shift and I am sent home after recording a high temperature, is my employer required to pay me reporting time pay?
A: Generally, yes. Under the law, workers who report to work and are later sent home by the employer having worked less than half of their regularly scheduled shift, are entitled to be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours at their regular rate of pay.
For additional information, the Labor Commissioner has FAQs regarding reporting time pay under normal conditions and during a state of emergency.
An employee may also choose to take California paid sick leave or Supplemental Paid Sick Leave to supplement the reporting time pay under these circumstances. A side-by-side chart comparing applicable state and federal laws on paid leave is posted online, as are FAQs on laws enforced by the Labor Commissioner.
12. Q: Is my employer required to pay workers for reasonable expenses if my employer requires that workers complete a medical check using a particular cell phone application?
A: Yes, in some cases. If a worker is required to use a personal cell phone as part of a medical check, the employer must pay a reasonable percentage of the cell phone bill to compensate the worker for the portion of time the worker spends on a personal cell phone following the employer’s directions. One method that may be used to calculate a reasonable percentage is to determine what portion of the total time a worker spends monthly on a personal cell phone for the medical check required by the employer. Alternatively, an employer may supply the device at no charge to the worker and no reimbursement would be required.
13. Q: Is my employer required to pay me if my employer requires that I perform medical checks, like a temperature check, at home?
A: Yes, in some cases. “Hours worked” can include tasks that an employer requires a worker to perform remotely, including tasks that determine whether a worker can or must go to a physical worksite.
Whether time spent at home performing medical checks constitutes hours worked depends on the factual circumstances of each case, including the level of control exercised by the employer. For example, time doing medical checks would likely not be compensable hours worked if an employer simply requested that workers take their temperatures and do a brief wellness check before coming to work so that they could be sure to refrain from coming into work if sick or a risk to co-workers. This generally would not constitute hours worked because the level of control would be slight.
Alternatively, time performing medical checks at home likely would be compensable hours worked if, for example, an employer mandated that workers spend a few minutes before every shift following a set of detailed procedures using a particular cell phone application to take and record their temperature and then fill out a health questionnaire of non-trivial length, and the responsive information is then transmitted to the employer for review. In that case, the employer would be exercising a high degree of control over the manner and timing of the medical checks.
14. Q: Is my employer required to compensate me for the time spent obtaining a COVID-19 test or vaccination?
A: If the employer requires an employee to obtain a COVID-19 test or vaccination (see Department of Fair Employment and Housing FAQs for guidance on the types of COVID-19 tests an employer may require and on vaccination), then the employer must pay for the time it takes for the testing or vaccination, including travel time.
The employer must pay for the time it takes for testing or vaccination because such time would constitute “hours worked.” The term “hours worked” means the time during which a worker is subject to the control of an employer, and includes all the time the worker is suffered or permitted to work, whether or not required to do so. Under this definition, one way to determine whether time a worker spends performing a task must be paid as time worked is whether the employer exercised control over the worker by requiring the worker to perform that task. If an employer requires that a worker obtain a medical test or vaccination, the time associated with completing the medical test or vaccination, including any time traveling and waiting for the test or vaccination to be performed, would constitute time worked. However, unless otherwise required, the time spent waiting for COVID-19 test results is not compensable as hours worked, although the worker may be able to utilize paid leave while waiting for the results.
An employer cannot require the worker to utilize paid leave if the time is considered “hours worked” as referenced above.
If the time is not considered “hours worked,” the worker may be able to utilize the worker’s paid leave for time off from work to obtain testing or vaccination. Refer to the information above about 2021 California Supplemental Paid Sick Leave. Also, regular paid sick leave may be used for preventive care, which includes medical testing and vaccines, for the employee or the employee’s family members, and workers are protected against retaliation under the Labor Code for using paid sick leave.
15. Q: Is my employer required to compensate me for the cost of a COVID-19 test or for the cost, if any, of getting a COVID-19 vaccination?
A: Yes, if an employer expressly requires an employee to obtain a COVID-19 test or a vaccination, or if the employee obtains the test or vaccination as a direct consequence of the employee’s discharge of the employee’s duties (i.e., the test or vaccination is effectively required for a job), the employer must pay for the costs of the test or vaccination as it is a reimbursement for necessary business expenses. If the employer requires a test or vaccination and there is no designated testing site, workers should ask which location(s) or vendor(s) are acceptable to the employer to avoid disputes over cost.
If the testing or vaccination is performed at a location other than the employee’s ordinary worksite, the employee may also be entitled to reimbursement for necessary expenses incurred to travel to and from the testing or vaccination location.
16. Q: What anti-retaliation protections apply to vaccinations?
The Department of Fair Employment and Housing (DFEH) enforces an anti-retaliation provision under the Government Code that protects employees seeking reasonable accommodations for a disability or sincerely-held religious belief or practice, among other protected activities. More information on this protection is available on the DFEH website.
Additionally, the Labor Commissioner’s Office enforces anti-retaliation protections that may apply to actions workers undertake in connection with getting vaccinated, such as using paid sick leave to get vaccinated. A list of laws that generally prohibit retaliation which the Labor Commissioner enforces is posted online.
Returning to the Worksite
17. Q: Can my employer instruct me to return to the worksite even though I have been able to perform my job from home?
A: Yes, in some cases. California is reopening workplaces in a manner designed to protect worker and public health and safety. Under the State Public Health Officer’s June 11, 2021 Order, businesses and individuals must do so in accordance with the CDPH Guidance for the Use of Face Coverings and other applicable guidance to protect workers and the public from the risk of COVID-19 at workplaces.
If your employer is in compliance with the guidance and Cal/OSHA standard relevant to your workplace, your employer may require you to return to the workplace, regardless of whether you have been able to perform your job duties at home. Workers are encouraged to speak with their employers about work options that are consistent with public health orders.
18. Q: What can I do if my employer asks me to return to the worksite, but I live with someone who is in a high-risk category?
A: Whether you can work from home due to living with an individual who is in a high-risk category may depend on the state and local public health orders and guidance in effect at the time your employer instructs you to report to work. Workers are encouraged to speak with their employers about work options that are consistent with public health orders and guidance. Depending on your particular duties, and whether your work can be done at home, such options may include telework or modified schedules.
If you are unable to agree with your employer on an alternative work arrangement, you may have other options. A summary of benefits for workers impacted by COVID-19 is posted online. Also, the California Family Rights Act requires covered employers to provide their eligible workers with unpaid but job-protected leave to care for a family member with a serious health condition, or when the worker is unable to work because of a serious health condition.
Waivers of Liability
19. Q: Can my employer require workers to sign a form waiving rights under the Labor Code as a condition of returning to work?
A: No. A document or contract signed by a worker that waives employer liability for violations of minimum basic rights under the Labor Code will likely be found invalid and may result in liability against an employer under Labor Code section 432.6(a). For instance, California employees are entitled to workers’ compensation benefits for injuries occurring or illnesses contracted during the course of employment. California employees are also entitled to a safe and healthy workplace. These statutory rights to benefits cannot be waived.
You should consult with an attorney if your employer refuses to let you work unless you sign a waiver for rights to workplace protections or retaliates against you for exercising your rights under California law, including for workers’ compensation benefits. If you have been retaliated against for exercising your rights in the workplace, you may file a retaliation complaint with the Labor Commissioner’s Office.