COVID-19 Update: Cal/OSHA Is Ready to End Exclusion Pay Requirements

The “exclusion pay” requirement is almost behind us – but not quite.

“Exclusion pay” refers to the requirement that an employer maintain “an employee’s earnings, wages, seniority, and all other employee rights and benefits” if the employee is excluded from work for work-related COVID exposure. This benefit was part of part of the original COVID-19 emergency standard, first passed by Cal/OSHA at the end of 2020.

Normally, an emergency temporary standard passed by Cal/OSHA has a short shelf-life. This is by design, encouraging rule makers to follow the strict administrative process for passing regulations. As you know, the COVID-19 standard was extended multiple times, and a December 2021 executive order allowed this emergency standard to continue through the end of 2022.

As the emergency standard expiration deadline loomed, the Cal/OSHA Standards Board was divided by the issue of exclusion pay, with labor advocates pushing for its inclusion in the new non-emergency standard (“non-emergency” because most requirements expire after two years). However, Cal/OSHA ultimately removed it from the standard that they adopted on December 15, 2022.

But don’t be too hasty. The standard does not go into effect until approved by the Office of Administrative Law, and OAL rules dictate that when a regulation is adopted and sent for review, the emergency regulation remains in effect during OAL’s review, up to 30 working days. This means that the emergency COVID-19 standard – technically set to expire last week on December 31 – could potentially extend into February. It remains active today.

The OAL could grant approval of the non-emergency standard sooner than that, of course. For now, though, employers should continue to provide exclusion pay. Sierra HR will update clients as soon as we know an official exclusion pay end date.

You can find the non-emergency COVID standard here.

As always, Sierra HR Partners is here to help you navigate the ever-changing landscape of COVID-19 precautions and paid leave benefits. Please contact one of our Consultants with any questions you have.