The Families First Coronavirus Relief Act (FFCRA) required all employers with fewer than 500 employees to provide 80 hours of paid leave for COVID-19-related reasons, which was set to expire on December 31, 2020. While Congress did extend the FFCRA, it did not extend the mandatory leave requirement.
California also passed its own legislation, codified in Labor Code sections 248 and 248.1, that provided supplemental paid sick leave requirements similar to FFCRA leave for all California employers with 500 or more employees. California tied its mandatory paid COVID-19 leave requirement to the FFCRA’s paid sick leave requirement. Employers across California breathed a sigh of relief on January 1, 2021, as both the FFCRA and California’s supplemental paid sick leave requirements expired, believing that they no longer had to provide paid sick leave to employees for COVID-19-related reasons.
However, on December 1, 2020, Cal/OSHA’s emergency regulations requiring employers to protect workers from hazards related to COVID-19 went into effect. Buried in Cal/OSHA’s Emergency Regulations was provision (c)(10), which requires California employers to exclude all employees exposed to COVID-19 and all COVID-19 cases from the workplace. The same provision also requires employers to “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.”
The same provision provided two exceptions to this requirement. First, it does not 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. Second, it does not apply where the employer demonstrates that the COVID-19 exposure is not work related.
Cal/OSHA has clarified that employers may require the employee to exhaust paid sick leave benefits before providing the exclusion pay. Furthermore, these obligations do not apply if the employer establishes the employee’s exposure was not work-related.