By Kevin Cleveland, Esq.
Recently, employers have been increasingly asking about Cal/OSHA’s requirements and how they apparently conflict with more recent executive orders and advisories from the California Department of Public Health. This article does not lay out all requirements under the Cal/OSHA guidelines but clarifies some of the most common questions that we have been receiving.
Employer’s Quarantine Obligations for Workplace Exposures
When an employee informs their employer that they tested positive for COVID-19, the following must happen:
1) The employee who tested positive (“COVID-19 case”) must be sent home and excluded from the workplace if not already home;
2) The employer must determine when the COVID-19 case was last in the workplace and, if possible, the date of testing and onset of symptoms;
3) The employer must determine which employees may have been exposed to COVID-19;
4) The employer must notify employees of any potential exposures within one business day and exclude the exposed employees from the workplace (and notify any other employer who has potentially exposed employees in the workplace). This only includes employees who were within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the COVID-19 case’s “high risk exposure period” (generally: symptomatic positive test = 2 days before symptoms until 10 days after symptoms; non-symptomatic = 2 days before the test to 10 days after the test.)
5) The employer needs to offer testing to potentially exposed employees at no cost and during working hours;
6) The employer needs to investigate the exposure, whether workplace conditions could have contributed to the risk of exposure, and what corrections would reduce exposure;
7) Under current Worker’s Compensation requirements, the employer must inform their Worker’s Comp carrier of any COVID-19 case, whether or not it is a workplace exposure resulting in a claim.
Exclusion Pay and Benefits
While the employee is excluded from work due to a workplace exposure and the employee is otherwise able to work (i.e., is not sick):
1) An employer may require the employee to exhaust unused, accrued paid sick leave benefits before providing exclusion pay and benefits; and
3) An employer must continue to provide the employee with pay and benefits (though an employer can deduct from the amount to be paid any other assistance which the employee may be receiving).
NOTE: Excluded employees may continue to work from home if such work is available. If so, then exclusion pay is not necessary. Also, if an employer can demonstrate that an employee was exposed to COVID-19 outside of work or the employee is not otherwise able to work, then the employer does not have to pay exclusion pay.
Return to Work Criteria
Return to work criteria depends on whether the employee tests positive for COVID-19 or was only exposed to the virus via a “close contact”.
A positive COVID-19 case may return to work when:
1. With COVID-19 symptoms:
- 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.
2. Positive test but no COVID-19 symptoms:
- A minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
3. A licensed care professional determines the person is not/is no longer a COVID-19 case, in accordance with CA Dept. of Public Health or local health department recommendations.
Exposure (but no positive COVID-19 test):
A 14-day quarantine is recommended; however, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of the last known exposure. Health care, emergency response and social workers may return after 7 days with a negative COVID-19 test result collected after day 5 where there is a critical staffing shortage.
NOTE: Under all of the above scenarios, a negative test is not required to return an employee to work.
Employer’s Testing Obligations During an Outbreak
When a workplace has three or more cases over a rolling 14-day period, employers must also do the following:
1. Inform all employees on how to obtain testing;
2. Offer testing to employees at no cost and during working hours (this could include having testing brought to the workplace or allowing employees to leave the workplace to be tested); and
3. Continue testing employees on a weekly basis until the workplace no longer qualifies as an “outbreak” (i.e., has not had three or more cases in a rolling 14-day period).
Employer Posting Obligations
As of February 1, 2021, employers must post Cal/OSHA Form 300a which is a summary of the Cal/OSHA Form 300 Log of Work-Related Injuries and Illnesses that employers must keep. COVID-related injuries and illnesses must be included on the Form.
Cal/OSHA’s Emergency Guidance can be found here:
Cal/OSHA’s Model COVID-19 Prevention Program can be found here:
The related FAQs can be found here: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html
More information on Cal/OSHA's recordkeeping form can be found here: