As we previously reported the CA Department of Industrial Relations (DIR) has adopted emergency rules related to protecting workers from COVID-19, including a requirement for employers to adopt a written prevention program which must include processes to exclude employees from work under certain circumstances and provide the employee with paid leave.
Specifically, with respect to exclusion / leave requirements employers must:
· Ensure that COVID-19 cases are excluded from the workplace until the return to work requirements are met (see next section).
· Exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.
Paid Leave Required
For employees excluded from work under these rules and otherwise able and available to work, employers must continue and maintain an employee's earnings, seniority, and all other employee rights and benefits as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers' compensation. However, these requirements don't apply:
· To any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.
· Where the employer demonstrates that the COVID-19 exposure isn't work related.
At the time of exclusion, the employer must provide the employee information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws. Employers must also inform employees of the rights and benefits extended to employees excluded from work under the rules and otherwise able and available to work.
Employees who haven't been excluded or isolated by the local health department need not be excluded by the employer, if they are temporarily reassigned to work where they don't have contact with other persons until the return to work requirements are met.
Processing Exclusion Pay
Exclusion pay is not considered hours worked and therefore would not count towards “total hours worked” for purposes California wage statement compliance (which requires in relevant part that total hours worked to be displayed on the pay statement).
Exclusion pay hours would also not count towards overtime.
To process these payments you should contact your Payroll Advisor to have an hours/earnings code established for exclusion pay that is not to be included in total hours worked or overtime calculations.
Return to Work Criteria
COVID-19 cases with COVID-19 symptoms are prohibited from returning to work until:
- At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
- COVID-19 symptoms have improved; and
- At least 10 days have passed since COVID-19 symptoms first appeared.
COVID-19 cases who tested positive but never developed COVID-19 symptoms are prohibited from returning to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test. The rules prohibit requiring a negative COVID-19 test for an employee to return to work.
If an order to isolate or quarantine an employee is issued by a local or state health official, the employee is prohibited from returning to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period is 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.
If there are no violations of local or state health officer orders for isolation or quarantine, the DIR may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community's health and safety. In such cases, the employer must develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation isn't possible, the use of respiratory protection in the workplace.