California: ETS Rules Clarified


All Employers with CA Employees


January 26, 2021


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(888) 378-2456

The California Department of Industrial Relations (DIR) recently issued an FAQ with updates clarifying the Cal/OSHA Emergency Temporary Standard (ETS). The following is a summary of some of the key points.

  • Enforcement – The DIR acknowledged that the ETS was implemented quickly, giving employers little time to come into compliance. For enforcement purposes, Cal/OSHA will consider an employer’s good faith efforts in working towards compliance, but employers must take immediate action on essential aspects, such as eliminating hazards and implementing testing requirements during an outbreak.
  • Workplace Exclusion – Employees who are vaccinated must still follow all prevention measures until further guidance is provided.
  • Testing – The ETS states that employers must “offer” or “provide” testing during an outbreak and major outbreak in the workplace. The FAQ clarifies that “offer” and “provide” have the same meaning – to make the testing available. The FAQ also expressly addresses the requirement to pay employees’ wages for their time to get tested and travel time to and from the testing site, as well as reimburse travel costs to the testing site. Tests must be provided during paid time, not necessarily normal working hours. Additionally, even though employers may offer testing, employees may decline or refuse to be tested.
  • Exclusion Pay and Benefits – If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits while they are excluded from the workplace. However, exclusion pay and benefits are not required where the employer can establish that the employee’s exposure was not work-related or if the employee is unable to work because of reasons other than protecting people in the workplace from possible COVID-19 transmission (e.g., a business closure, caring for a family member, disability, or vacation). An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days. If an 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 regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness.

Action Items

  1. Review the FAQ here.
  2. Update COVID-19 prevention procedures.
  3. Have appropriate personnel trained on ETS requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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