Now that Cal/OSHA and the Board have moved on from the two-year COVID-19 regulation, the focus is now on the development of an Infectious Disease rule for General Industry. Stakeholders were surprised to hear at the November 2022 Board meeting that the Division of Occupational Safety and Health (DOSH) has already developed a draft which includes a provision for exclusion pay. Not surprising, this announcement reignited the debate amongst stakeholders and Board members on the need for, and strategy to, include an exclusion pay. Despite having a draft with such a controversial element, DOSH has been unable to share when an Advisory Committee will be scheduled. In response to multiple probes and requests to start a discussion with stakeholders, DOSH highlighted that there are many other regulations on the books and ahead of the Infectious Disease standard.
At the request of Board member Laura Stock, a discussion about exclusion pay was added to the Board’s January Agenda. During this discussion, debate continued when Ms. Stock made an official motion and insisted that Board members vote on their support to include exclusion pay in the General Industry Infectious disease standard. She said that it is an essential piece to prevent transmission and removal is part of the hierarchy of controls. In the end, Board members voted on a motion that Ms. Stock developed with Board Staff to send a message, expressing desire to include exclusion pay in the Infectious Disease Standard for General Industry. The final vote was 4-3 with Board members Kate Crawford, Nola Kennedy, and Chris Laszcz-Davis voting no.
PRR continues to voice concerns about exclusion pay provisions in a permanent infectious disease standard for all industries in California. We agree with Board Member Nola Kennedy – the scope of infectious diseases is expansive. We do not think it is reasonable to require blanket pay protections for diseases that can spread in the community as easily as they can spread in the workplace. Unlike in a healthcare setting, infectious diseases are not occupational in nature for general industry workers and work environments. We are also concerned about the Board’s responsibility and the Division’s authority to impose significant financial obligations on employers to fill perceived gaps in California’s sick policies and worker compensation. After listening to some of the Board members’ reasons for supporting exclusion pay, we concluded that they are conflating two issues: the requirement to remove an employee and who is responsible to pay.
As PRR anticipated, the prescriptive elements in the COVID-19 ETS and the unprecedented exclusion pay with few controls was a slippery slope. This Infectious Disease Standard will be yet another significant regulatory challenge for California employers. Our OSH Forum will continue to monitor and provide essential recommendations during its development. Please join us in this effort!