California set to keep workplace pandemic rules through 2022

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California workplace regulators are poised to extend mandatory pay for workers affected by the coronavirus through the end of 2022, more than two months after state lawmakers restored similar benefits through September.

The decision expected Thursday again pits management against labor as the seven-member Occupational Safety and Health Standards Board renews revised workplace safety rules that would otherwise expire in early May.

"The proposal is a necessary recognition that the pandemic is ongoing, the future is unclear, and workplaces must remain protected and prepared," said Stephen Knight, executive director of Worksafe Inc., an Oakland-based worker advocacy group. "Including sick pay and job protections for workers infected on the job and sent home is vital."

But Rob Moutrie, a policy advocate with the California Chamber of Commerce, said business groups "remain concerned about the cost and confusion of maintaining uncapped exclusion pay as part of the regulation, particularly in light of the Legislature’s recent passage of COVID-19 sick leave legislation."

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Small businesses have particularly struggled with the obligation, Moutrie said. The Cal/OSHA rule applies in almost every workplace in the state, covering workers in offices, factories and retail businesses, while the state sick leave law applies only to companies with 26 or more employees.

The debate comes as the highly transmissible omicron variant BA.2 becomes dominant in California and across the U.S., threatening a new wave of infections.

The state’s case rate is up by one third and test positivity has doubled since late March. Hospitalizations and intensive care patients remain at or near their lows for the pandemic. But the state’s models predict hospitalizations will increase from fewer than 1,000 now to 1,500 in another month, while ICU admissions are expected to continue declining before beginning a slow increase by late May.

The pending regulation requires employers to keep paying workers’ wages and maintain their seniority and other benefits for as long as they can’t work because of a coronavirus exposure or infection, unless they receive disability payments or the employer can prove the close contact wasn’t work-related.

"It is important that employees who are COVID-19 cases do not come to work," Cal/OSHA said. "Maintaining employees’ earnings and benefits as usual, when they are excluded from the workplace, is important to ensure that employees will notify their employers if they test positive for COVID-19 or have a close contact."

The state’s sick leave law differs in that it provides employees with up to one week of paid time off if they get the coronavirus or are caring for a sick family member. They qualify for a second week off only if they or their family members test positive.

There’s a troubling provision in the revised Cal/OSHA paid leave rules that isn’t in current regulations, said Mitch Steiger, a legislative advocate for the California Labor Federation.

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Currently, an employee who has had close contact with an infected worker is also sent home, with pay. But the revised rules can keep them on the job until they test positive.

"The employer could force that person to stay at work and interact with co-workers, members of the public and immunocompromised people and whomever until that person tests positive," Steiger said.

"The more that we walk that back, the more space we give the virus to spread," he said.

Nearly two-dozen agribusiness organizations said in a letter to the standards board that the new pending rule creates another problem: "It actually rewards people for not getting tested," said Michael Miiller, California Association of Winegrape Growers’ government relations director, who wrote the letter.

Employers would have two choices when dealing with an outbreak of three or more coronavirus cases if an employee comes in close contact, they said: The employee must either test negative, or be given a week off with pay if they decline to be tested. They also noted that employees who were infected in the past 90 days could show false positive test results.

Despite their concerns, employee advocates want the board to approve the revised rules, while business groups are again urging the board to end specific regulations they say can’t keep up with a rapidly evolving virus and public health rules.

California has recently eased many masking and quarantine rules. Cal/OSHA says most of the revised regulations are consistent with recommendations and orders from the California Department of Public Health that employers are already following.

Knight, the Worksafe executive director, is concerned that Cal/OSHA is now relying too heavily on recommendations for the general public instead of those designed specifically for workplaces.

There’s a difference, he said, "between families choosing to go out to dinner, and a family member having no choice but to clock in and stand shoulder-to-shoulder washing dishes."

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