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.
- What should employees do if they were exposed to COVID-19 in the workplace and test positive or are unable to work due to COVID-19 related symptoms?
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 file a workers’ compensation claim with their employer. For more information, see the Division of Workers’ Compensation COVID-19 Guidance and Resources.
If an employee’s workers’ compensation claim is denied, the employee may be eligible for exclusion pay and can file a claim with the Labor Commissioner’s Office.
- If an employee is excluded from work because of workplace exposure, but the employee does not have COVID-19, is the employee eligible for exclusion pay?
Yes. An employee who does not have COVID-19 and 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 would have been able and available to work, if they had not been exposed. If the employee was not paid during the exclusion period, the employee can file a claim with the Labor Commissioner’s Office.
- What if an employer does not exclude from the workplace an employee who was exposed to COVID-19?
The ETS requires employers to exclude workers who have been exposed 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.
- How is exclusion pay calculated for employees excluded from the workplace due to exposure to COVID-19 at work?
The rate of pay for exclusion pay is an employee’s regular rate of pay for the workweek 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. Excluded employees who do not contract COVID-19 and do not develop any symptoms must be excluded from the workplace for up to 14 days.
The Labor Commissioner’s Office can accept claims only for those employees who have been excluded from the workplace due to exposure at work and the employee would have been able and available to work, if they had not been exposed.
- Can employers require employees who are excluded due to workplace exposure to take paid sick leave under the ETS?
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. For example, 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.
- Can employers require their employees to take paid leave specifically provided to address COVID-19 instead of exclusion pay?
Yes, employers may require employees who are excluded due to exposure in the workplace to use any available COVID-19-specific supplemental paid leave, if allowed by law. For example, the 2021 COVID-19 Supplemental Paid Sick Leave law (Labor Code section 248.2) expressly permits employers to require the use of 2021 COVID-19 Supplemental Paid Sick Leave before providing exclusion pay.
- How can an employee file a claim for exclusion pay with the Labor Commissioner’s Office?
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 would file a lawsuit for the workforce or direct employees to file individual claims.
- What rights do employees have if their employer retaliates against them for requesting exclusion pay?
Employees who are exercising or attempting to exercise their rights related to exclusion pay are protected from retaliation under Labor Code sections 98.6, 1102.5, 6310, 6311, and 6409.6.
Labor Code section 98.6 protects employees who file a complaint or claim with the Labor Commissioner for exclusion pay, make a written or oral complaint that they are owed exclusion pay, or exercise any other rights related to exclusion pay on behalf of themselves or other employees.
Labor Code section 1102.5(b) protects employees raising issues related to exclusion pay if they disclosed information or the employer believes the employee disclosed information to: (1) a government or law enforcement agency, (2) to a person with authority over the employee or another employee who has authority to investigate, discover, or correct the violation or noncompliance, or (3) for providing information to a public body that is conducting an investigation, hearing, or inquiry. To have a successful 1102.5(b) claim, a worker must have reasonable cause to believe that they are disclosing a violation of a state or federal statute or noncompliance of a local, state, or federal rule or regulation.
Labor Code sections 6310 and 6311 specifically protect workers who are retaliated against for exercising their rights related to health and safety, and Labor Code section 6409.6 protects workers who have disclosed a positive COVID-19 test or diagnosis or order to quarantine or isolate. Employees should seek assistance from the Labor Commissioner’s Office if they have questions about retaliation or want to file a retaliation complaint.
- What pay or benefits may an employee be entitled to if they were exposed to COVID 19 outside the workplace?
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.