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Calif. Virus Safety Rules Add To Employers' Pay Obligations

By Mike LaSusa · February 11, 2021, 8:41 PM EST

A set of emergency safety regulations aimed at protecting California workers from the novel coronavirus pandemic has expanded employers' wage and hour obligations, leading employment attorneys to advise clients to prepare for possible enforcement actions by state regulators.

The rules approved by California's Division of Occupational Safety and Health, known as Cal/OSHA, took effect in late November. They require most Golden State employers whose workers could be exposed to COVID-19 in the workplace to adopt virus prevention measures and, in certain cases, to pay employees to stay home.

"It's noteworthy that Cal/OSHA didn't arrive on the scene until November with respect to a pandemic that was declared in March," said Jeffrey S. Horton Thomas, a management-side attorney at Fox Rothschild LLP. "But when Cal/OSHA acted, my goodness, it acted in a comprehensive way. These regulations are onerous and thorough."

If a worker is exposed to a confirmed case of COVID-19 in the workplace, and is able and available to work after the exposure, the employer must nevertheless exclude the worker from the workplace and maintain their pay and benefits for at least 10 days as if the employee were still working. The employer must also allow exposed employees to obtain COVID-19 testing during working hours at no cost, according to Cal/OSHA.

Employers can require workers to use up paid sick leave benefits to cover their pay during the time they're excluded from the workplace. However, if the employee isn't able or available to work after being exposed to the virus, they aren't entitled to any so-called exclusion pay, though they may be eligible for workers' compensation or disability benefits.

Additionally, the regulations require employers to create plans for preventing and investigating COVID-19 cases in the workplace.

It's a good idea to make sure those plans are thorough since the rules only give employers one business day to notify employees of a potential exposure. If an employer waits until the first COVID-19 case in the workplace before figuring out the details of how to respond, that employer might not meet the deadlines set by the regulations, Thomas said.

"And they're going to leave in the workplace employees with potential exposure to the COVID-19 case, potentially further spreading the virus and violating their obligations to workers," he added. "The more cases an employer has in the workplace at any one time, the greater their obligations become."

The regulations also require employers to provide free masks and personal protective equipment to all workers. If workers buy their own gear, employers may need to reimburse them for the cost, but only if the expense was "reasonable and necessary," said Marie Burke Kenny, the employment practice leader at management-side firm Procopio Cory Hargreaves & Savitch LLP.

"Whether the employer has to pay for that becomes a question of, does that employee need that in every aspect of their life or just work?" she said.

When it comes to compensating employees for time spent complying with safety regulations — like putting on protective equipment or going through a temperature check, for example — Kenny said employers are usually better off paying workers.

"The reality is that in 2021, employers really should be capturing down to the nearest decimal point every minute that an employee works and paying for it because that's just where the case law is going," the Procopio Cory partner said. "If [an employee is] in the workplace and they're doing something for the employer's benefit, then pay it."

So far, Cal/OSHA has emphasized educating employers on the new requirements rather than cracking down on violators, but Thomas cautioned that could change.

"I don't expect that attitude to continue for long, given the seriousness of the pandemic in California," the Fox Rothschild partner said.

Employees should also be aware of the new rules and ask their employers how they plan to comply, said worker advocate Jennifer Kramer of Hennig Kramer Ruiz & Singh LLP, though she acknowledged that workers are also currently dealing with other pressing workplace concerns.

"It's not the employees' priority right now to make sure they're getting paid right," Kramer said. "They just want to not get COVID and not lose their job."

Cal/OSHA's rules caused a stir in the business community when they were issued, in part because the emergency nature of the process meant there was little opportunity for outside input and also because the regulations raised questions about what is and isn't within the agency's jurisdiction, attorneys said.

"That was pretty shocking because you don't usually see Cal/OSHA as a government agency making any rules about payment of wages," Kenny said.

The National Retail Federation and National Federation of Independent Businesses, joined by a trio of California employers, sued Cal/OSHA in December in state court, arguing the agency overstepped its authority by trying to regulate wage and hour issues.

"Testing is not something that they can mandate widely, and other California agencies have jurisdiction over leave policies," said NRF general counsel Stephanie Martz.

The suit also argues the regulator didn't establish that COVID-19 is a workplace-specific safety concern, asserting that the virus is a general health problem for which Cal/OSHA cannot issue regulations.

"COVID is everywhere right now, but it is not a workplace hazard in the sense that it did not arise from the workplace and is not endemic to the workplace," Martz said.

The lobby groups and the businesses have asked the judge to block the rules while the case proceeds. Cal/OSHA countered in a court filing that the rules are needed because "workplaces are not immune from this serious illness or its heightened spread."

The agency declined to comment on the suit. 

The request for a block on the rules hasn't been decided yet, but attorneys uninvolved in the case said businesses shouldn't count on the court nixing the rule.

Procopio Cory's Kenny said she's "not very optimistic" that the challenge will be successful, and advised businesses to plan on the regulation staying on the books.

"Employers are having to make a decision: Do you take the risk that this law will be invalidated because Cal/OSHA exceeds its authority, or do you try to mitigate that loss and that liability as you go?" she said.

Kramer, of Hennig Kramer, echoed those remarks.

"Employers need to take a beat and make sure they're in compliance," she said. "I think it's fair that if you are going to benefit from employing people and requiring them to come into a workplace, that you share in the burden of making sure that people are safe."

The groups and businesses challenging the rules are represented by Jason S. Mills, Sarah J. Allen and Aleksandr Markelov of Morgan Lewis & Bockius LLP.

The agency is represented by California Attorney General Xavier Becerra and Michael L. Newman, James F. Zahradka II, Lisa Cisneros, Marisol León, Gabriel Martinez, Vilma Palma-Solana, James E. Stanley and William H. Downer of the California attorney general's office.

The case is National Retail Federation et al. v. California Department of Industrial Relations et al., case number CGC20588367, in the Superior Court of the State of California, County of San Francisco.

--Additional reporting by Craig Clough. Editing by Abbie Sarfo and Neil Cohen.

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