Exclusion Pay is the Only COVID-19 Leave Program to Covers ALL California Workers, but Cal OSHA Decided Workers will no Longer Have it

by AnaStacia Nicol Wright

The fight for worker protections during COVID, much like COVID itself, continues: exclusion pay is in the current COVID-19 safety standard and has been included in past iterations as well; however, in response to pressure from the business community and other political powers, it will not be part of the pending 2-year permanent COVID standard.

For the past several months Worksafe and advocates such as the California Labor Federation, California Nurses Association, California Rural Legal AssistanceFoundation, SoCal COSH, United Food and Commercial Workers and many others have been appearing before the Cal OSHA Standards Board to argue for keeping exclusion pay and job protections in the proposed 2-year COVID-19 standard. Many business advocates have also appeared before the standards board arguing that California has enough leave options to cover employees who would qualify for exclusion pay. They also contend that the exclusion leave job protection provisions merely duplicate existing leave retaliation laws. But such an analysis is shortsighted.

Exclusion Paid Leave v. Supplemental Paid Sick Leave

Exclusion Pay and Supplemental Paid Sick Leave are not the same. That’s the first thing you need to know about our calls to add exclusion pay back into the pending 2-Year COVID-19 Standard.

The COVID-19 Emergency Temporary Standard provided California workers with exclusion pay from November 2020 to December 2022. Exclusion pay protected all employees (except for healthcare professionals, who are covered under the existing Aerosol Transmissible Disease standard) who are exposed to or catch COVID-19 at the workplace and are excluded from work by their employer. An employee who contracts the virus outside of work and then comes into work and exposes their colleagues to the virus has now created an “at work exposure.” The person who obtained the virus outside of work likely wouldn’t qualify for exclusion pay under the standard, but their coworkers who were exposed to the virus at work would be.

COVID-19 Supplemental Paid Sick Leave, by comparison, provides for a total of 80-hours of paid sick leave. Covered employees unable to work or telework are able to access 40-hours of paid sick leave, without a positive COVID-19 test, for the following reasons:

• Caring for Yourself: COVID-19 isolation or quarantine, experiencing COVID 19 symptoms and seeking a medical diagnosis.
• Caring for a Family Member: The covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
• Vaccine-Related: The covered employee or a qualifying family member is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.

An additional 40-hours is available to a covered employee unable to work or telework, with a positive COVID-19 test, for the following reasons:

• Caring for Yourself: COVID-19 isolation or quarantine, experiencing COVID 19 symptoms and seeking a medical diagnosis.
• Caring for a Family Member: The covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.

Supplemental Paid Sick Leave only applies to employers with 26 or more employees. This means that employers with 25 employees or less are exempt from providing supplemental paid sick leave. Per Cal Matters in a February 2022 article, this exemption applies to more than 90% of companies in California and leaves at least one in four workers without access to the new paid leave law. Moreover, Supplemental Paid Sick Leave is set to expire at the end of 2022.

Do Californian Workers Have Other Paid Leave Options?

California requires employers to provide a minimum of 3-days of paid sick leave each year to full-time workers. However, three days falls short of covering the 5-day quarantine requirement for COVID-19 exposure. This sick leave requirement also only covers full-time workers. While data on the part time labor force is not easy to find, there are likely over one million Californians who work part time and thus are unable to access this minimal sick leave benefit.

Short Term Disability Leave (SDI) and Paid Family Leave (PFL) are additional paid leave options available to California’s workers. However, SDI and PFL do not provide job protections, only monetary benefits. SDI is only available for non-work related injuries and illness, and PFL is only available for workers in need of paid leave time to care for family matters, taking them both out of reach for COVID-19 related issues. To take advantage of either of these for a workplace infection would require lying to your employer. Don’t do that.

Are There Any Other COVID-19 Leave Options Available for Workers?

Generally speaking, California companies do not pay you if you require time off after your paid sick leave options have run out. Additionally, not all unpaid leave qualifies as protected leave. Protected leave means that employers are prohibited from retaliating against you for taking leave. It also guarantees that when you return to work you are given the same or a comparable position.

If you have exhausted Supplemental Paid Sick Leave or you fall into the category of 90% of businesses who are not covered because they have 25 workers or fewer, you may be able to take unpaid leave under the Family Medical Leave Act (FMLA) or California Family Rights Act (CFRA). However, both of these leave options have huge gap areas where some of California most vulnerable workers fall through.

FMLA v. CFRA

The FMLA is similar to the CFRA, but there are key differences. FMLA applies to employers with 50 or more workers. This means that if your employer has 49 workers or less, then your employer does not have to provide you with FMLA leave. According to data from California’s Employment Development Department we know that 90% of California employers have less than 25 employees. That means that a significant percentage of California workers are excluded from taking unpaid leave to recover from COVID-19 under FMLA protections.

CFRA provides more protections for California’s workers suffering from COVID-19 than FMLA because it applies to workplaces of 5 or more employees. Employees who qualify have access to 12-weeks of unpaid protected CFRA leave for:

• Birth of child (“baby-bonding”)
• Adoptive- or foster care child placement
• Caring for covered family member with serious health condition
• Personal serious health condition (not including pregnancy)
• Qualifying military exigency

Ostensibly, CFRA coverage could appear to be a good replacement for exclusion pay in terms of job protection, at least, because workers exposed to COVID-19 at work would qualify under prong 4.

However, such an assumption is short sighted. According to California’s Employment Development Department, CFRA excludes 74% of California’s work establishments, which have less than five employees, employees must have one year of employment with the company and 1250 hours of work in a year (or 24 hours a week), and the employer can use different calculations to minimize coverage available to their staff.

Even if they meet the requirements for CFRA or FMLA, many workers need this option for other eventualities, like giving birth to or adopting a child, tending to a spouse or child with COVID-19, etc. Add to that the likelihood of catching COVID-19 more than once, and it’s clear the current protections are entirely inadequate.

Are Workers Protected Against Retaliation for Taking Leave Due to COVID-19?

Many business-side advocates say that California laws prohibiting retaliation already protect workers against retaliation due to COVID-19. California does have various anti-retaliation protections. But the existing ones leave gaps in application.

While it’s true that paid sick leave laws prohibit retaliation, they only explicitly protect “accrued increments of compensated leave provided by an employer to an employee…for use…during an absence from the employment.” In other words, unpaid leave does not fall under this category. As such, the language in Labor Code Section 233 and 246.5 does not provide retaliation protections to employees who have exhausted their accrued time and are left only with unpaid time off.

AB 2693 (Reyes- 2022)- COVID-19 Notification and Reporting states that an employer shall not retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate. Workers who believe they have been retaliated against in violation of this section may file a complaint with the Division of Labor Standards Enforcement.

Yet, this provision is vague enough to leave confusion as to who it actually protects. Does it only apply to paid sick leave and protected unpaid sick leave? Or is it available to workers with no protected leave? It also begs the question if it protects the actual time an employee is absent from work due to a COVID-19 exposure or if it only protects retaliation against the actual disclosure. I’d argue this provision protects only the latter and does not actually prohibit employers from implementing attendance policies that would limit the ability for a worker to access unpaid leave and face potential consequences as a result. This may seem like “splitting hairs’’ but it is inside these gaps where lawyers earn their keep. This provision’s lack of clarity leaves too much room for misinterpretation by employers.

In other words, the COVID-19 Notification and Reporting rule doesn’t “protect” workers, it forces them to litigate what the law means. That is hardly a protection. And while employees may seek redress through the administrative and judicial processes, in the meantime they’ve been fired. The provision also ends on January 1st of 2024. The language of the COVID-19 ETS did away with any of the aforementioned confusion and provided protections for two years after January 1st, 2023.

How Was The Language In The ETS Different?

The language we are asking to be retained from the COVID-19 Emergency Temporary Standard does more than just protect against retaliation. It requires employers to maintain the exposed employee’s earnings and benefits if the excluded employee is unable to work due to exposure to COVID-19 at work.

During the pandemic, workers without this protection may fail to meet the minimum hours requirement to maintain their worker-provided healthcare not only for themselves, but for their entire family as well. COVID has caused additional problems for newly hired workers who are on provisional status because these workers aren’t provided with leave options until their provisional period expires, they risk getting fired if they stay home due to COVID-19.

Another equally important difference is that the Emergency Temporary Standard language required workers who were forced to stay home due to workplace COVID-19 exposure. Excluding exposed workers from the workplace is imperative to the safety of the general public and workers, especially ethnic minority workers. In fact, Studies have shown that “68 percent of COVID-19 deaths during the first year of the pandemic were adults in low socioeconomic positions employed in labor, service and retail jobs that require on-site attendance and prolonged close contact with others.”

These employment sectors are routinely filled with black and brown workers. This means that, if they live through COVID-19, a disproportionate amount of Latino and Black workers who will be exposed at work and excluded because of that work exposure will lose one week or more of wages. That’s one week’s worth of rent they won’t have, one week’s worth of food they can’t buy, one week’s worth of hours to qualify for medical insurance that they can’t accrue, one week’s worth of tuition they can’t pay.

Ensuring that workers will receive their regular rate of pay during that time is a critical component. The proposed 2 year COVID-19 standard will still require exposed workers to be excluded, but unpaid and risk their employment. There is a precedent being set here and it is very troubling: public health exclusion without job or pay protection.

How do Workers Fight Back?

In a world where people are contracting COVID-19 multiple times in one year, where vaccines are far from 100 percent effective and many people refuse to vaccinate, where long COVID is depleting the health and capacity of many workers, the current legal provisions for leave just aren’t enough.

The COVID-19 Emergency Temporary Standard addressed these gaps in leave coverage by providing its own separate COVID-19 leave pay and job protections. Without exclusion pay, many workers are left without any paid or protected leave options. Yet despite all this, the California Division of Occupational Safety and Health is removing exclusion pay from the 2-year COVID Standard. In doing this Cal/OSHA explicitly undercuts the Occupational Safety and Health Standard Board request that exclusion pay and protections be reincorporated.

Although we’ve lost the battle for exclusion pay in the 2 year COVID-19 standard, the war is not over. The Division of California Occupational Safety and Health is currently drafting the permanent COVID-19 (and other viruses and diseases) standard for general labor industries. Now is the time to begin raising our voice, telling Cal/OSHA, our legislators, news reporters and anyone who will listen that we demand exclusion pay and job protections be included in the general industry standard. We can begin mobilizing our families, neighbors and community members so that we are in a position to launch a strong assault on an administrative body in favor of skirting workers safety for the sake of business’ profits.