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Title: Employee Rights during COVID-19: Safety, Compensation and Paid Leave

May 28, 2021 | Employment Law

Many workers across the state of California still have questions regarding their rights under both state and federal COVID-19 protections for employees, including issues ranging from safety, compensation, paid time off and family medical leave.  Federal and state laws may differ and operate independently.  It is therefore important that you contact your state labor office or a qualified attorney in California to determine whether there are any state laws that address your workplace rights during the pandemic.

California Laws for COVID-19 “Exclusions” and Compensation

On November 30, 2020, California’s Division of Occupational Safety and Health, also known as Cal-OSHA, adopted the COVID-19 Prevention Emergency Temporary Standards (ETS). These new standards require employers to develop COVID-19 safety protocols and provides guidance on how employers should address COVID-19 cases and outbreaks in the workplace.

In addition, the ETS rule requires employers to exclude employees from the workplace under certain circumstances, such as testing positive for COVID-19. Referred to as the “exclusions rule,” the law pertains to circumstances that employees are sent home due to COVID-related issues such as:

  • Testing Positive for COVID-19.
  • Showing signs and symptoms of COVID-19 and awaiting test results before returning to work.
  • Showing no signs or symptoms of COVID-19, but sent home as a result of being exposed to a coworker who is either symptomatic or a lab-confirmed positive case.

Under California law, any employee or worker who is excluded from the workplace due to a COVID-19 related issue is entitled to compensation during their exclusion.  California state laws require that employers must maintain their pay and benefits.

It is important to remember that the California statues provide pay protections for employees who did not test positive (did not or does not have COVID-19) and who were excluded from workplace because of a work-related COVID-19 exposure.  In this case, employees may be entitled to exclusion pay if:

  1. The employee was not assigned to telework (work from home, etc.) during the time they were excluded from the workplace; and
  2. If the employee would have been able and available to work, if they had not been exposed in the workplace.

If the employee was not paid during the exclusion period, then the employee has the right to file a claim with the California Labor Commissioner’s Office. If you have questions or concerns regarding your exclusion status and your pay and benefits, you should contact a California attorney right away.

Compensation Laws for Employee Time Spent on COVID-19 Prevention Activities

Many employers may require employees to take their temperature to try to screen for people who might have COVID-19 before entering the job site. In some cases, employees have the right to be paid for the time spent having their temperature taken.

Under the United States Fair Labor Standards Act (FLSA), your employer is required to pay you for all hours that you work, including the time period before you begin your normal working hours if the task that you are required to perform is necessary for the work you do.

In many cases, time spent waiting for and undergoing a temperature check related to COVID-19 during the workday must be paid.  The time spent between the start and finish of an employee’s workday (work shift) must be paid unless it falls within one of the federal exemptions such as meal breaks and off-duty time.  Certain laws require that employees be paid for time spent in waiting for and receiving medical attention required by their employer during their work shift.  The same logic applies to a temperature check required by your employer during your workday.

During COVID-19, many California employees find themselves undergoing a temperature check before they begin work.  If temperature checks are a necessary part of the job, then employees may be entitled to pay while undergoing these checks.  If you have questions regarding your right to fair pay under California COVID-19 safety and compensation laws, then contact our qualified attorneys for an immediate evaluation of your case.