On January 8, 2021, the Department of Industrial Relations issued much needed clarifications on its requirements that employers provide “exclusion pay” for employees who are exposed to COVID-19 at work.
As a reminder, Cal/OSHA’s current standard is that an employer must continue to provide an employee’s pay and benefits if the employee is “able and available to work.” This means that if an employee was exposed through work-related activity to a COVID-19 case as a close contact and remains asymptomatic, the employer must continue to provide their pay and benefits.
However, if an employee is now unable to work because of their COVID-19 symptoms, they are no longer considered “able and available to work.” Therefore, they are not eligible for exclusion pay and benefits under section 3205(c)(10)(C). However, that employee may be eligible for Workers’ Compensation or State Disability Insurance benefits.
The excluded employee is able to receive pay for the entire period the employee is quarantined, which could be up to 14 days. If the employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the return-to-work requirements, that extended quarantine period may be an indication that the employee is not “able and available to work” due to illness. They may still be eligible for temporary disability or other benefits.
Finally, it is important to note that employees cannot receive both temporary disability benefits under workers’ compensation and also receive their regular wages because they are excluded for work. This is because Cal/OSHA considers workers receiving workers’ compensation temporary disability benefits as no longer “able and available to work.”