Legal Expert on California COVID-19 Rule: 'It’s Wonky, it's Weird, It Doesn't Make Sense to Me'

Sarasota, FL (WorkersCompenstion.com) – California employers trying to adhere to the latest workplace mandates may be confused, to say the least. There are rules about isolation and quarantine, what constitutes acceptable tests and masks, exclusion pay, and supplemental paid sick leave. Making matters worse, they are changing constantly.

“Are you going to look in the regulation to find where these rules are? No, the regulation doesn’t say this. Things update too quickly,” said Eric Compere, Of Counsel in the Los Angeles office of Littler Mendelson, P.C. “We are updating by FAQ now.”

In its most recent monthly webinar, several firm representatives sorted through the latest California-specific requirements and gave advice for employers to stay in compliance.

Isolation, Quarantine

Among the most confusing and rapidly changing aspects of California’s COVID-19 landscape is the isolation and quarantine guidance for certain employees. Categories covered now are based solely on vaccination status, rather than if and when someone recovered from the virus. Another change since the emergence of the Omicron variance is consideration of booster status.

The Cal/OSHA webpage includes tables that describe specific categories for workers. Among the them are:

COVID-19 positive cases. Regardless of vaccination and/or prior infection status, an employee who tests positive for the virus must be out of the workplace for at least 5 days. If a negative test is taken on day 5, the worker may return on day 6, as long as he wears a mask for the remaining 5 days. The document suggests the employee take an antigen test.

“I’m going to tell you right now, take an antigen test,” Compere said. “I’m very doubtful you are going to get a negative PCR test five days after testing positive for COVID.”

Unvaccinated and booster-eligible workers who have been exposed to someone who is positive for the virus. An affected unvaccinated employee must stay out for 5 days, but can return on day 6 if they have a negative test and wear a mask. If they cannot test, they must stay out for a full 10 days.

Workers who are ‘booster eligible’ but have not yet received the extra shot may remain at the worksite while wearing a mask, and must have a negative test taken between days 3 and 5. They are then allowed to stay at the worksite as long as they are masked for the remainder of the 10 day period. For those who cannot test or who have a positive test result, they must then be excluded from the worksite.

“What does that mean?” Compere asked. “I guess you’re on the worksite for five days and if you can’t test on day 5 you’ve got to leave for 5 days. It’s wonky, it’s weird and it doesn’t make sense to me. But that’s what the rule says. They’re giving you the option to keep people on but it’s not very workable.”

Exposed workers who are fully boosted or are not yet eligible for the booster. ‘Not yet eligible’ refers to employees are still in the required waiting period before they are able to get the booster shot. “Fully boosted individuals can stay on the worksite provided they test [negative] on day 5 and they remain masked,” Compere said. “If they can’t test, there’s a weird idiosyncrasy that they still stay on the worksite but they have to be masked and social distance for 14 days. Theoretically, if they can’t social distance they have to be out for 14. It doesn’t make any sense, but that’s the way the rules play out if you take them to the end.”

The speakers advised employers to read through the Cal-OSHA tables every time they are faced with an occurrence to make sure they are doing what is appropriate.

“Here’s the tricky part,” said Bruce Sarchet, a shareholder with the firm. “You need to create a record of going through that exercise, because if you get an outbreak and [Cal/]OSHA comes they will ask ‘what was happening on day 6, what happened on day 4?’ You’ve got to do the basic building blocks of recordkeeping because you are subject to OSHA inspections.”

In addition to showing proof of a negative test in such a situation, the employer must also produce evidence that the correct type of test was used. Over-the-counter tests, for example can only be used if they are observed by the employer or authorized telehealth proctor.

Exclusion Pay

Employees excluded from employment due to COVID-19 related rules must be paid. It applies if the worker has tested positive or was a close contact to someone who tested positive, the exposure was work-related, the employee was not assigned to telework, and was not receiving disability or workers’ compensation funds..

While there have been question about whether Cal/OSHA has the authority to enforce it, state regulators believe it does.

“The conservative approach is to treat it as a real thing,” Compere said. “The first problem, what is work-related? The burden is on you, the employer to establish non-work relatedness. Basically, you have to prove a negative.”

The employee must be paid during the current pay period. The employer cannot require use of California’s paid sick leave; they can only require the use of paid leave policy that is separate and in addition to the California paid sick leave.

Meanwhile, there’s also the question of supplemental paid sick leave, which expired at the end of September. A bill introduced in the state legislature this month would revive it and would apply to employers with at least 26 employees. The bill, if passed, could throw a monkey wrench in the works for employers.

“The previous version of the supplemental paid sick leave provided you could use supplemental paid sick leave to cover your exclusion bill,” Compere explained. “The current bill says you can’t use supplemental paid sick leave or require its use to satisfy exclusion pay, That is potentially a huge broadening of the leave available to employees. We’re going to have to watch this bill as it moves forward.”

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