By Stacy L. Fode, Esq., Rachel H. Khedouri, Esq., and Samantha Egge, Legal Intern
As is typical in the Golden State at this time of the year, the California legislature has been very busy in the past several weeks enacting new and significantly expanding existing employment entitlements. On September 29, 2022 – the day prior to his deadline for signing or vetoing bills passed by the Legislature – Governor Gavin Newsom approved dozens of employment-related laws that had been awaiting his review this term. The following are brief summaries of some of the more significant of this new legislation for private employers. Unless otherwise indicated, all of these statutes go into effect as of January 1, 2023.
LEAVE LAWS
- Entitlement to five days of bereavement leave established (AB 1949) – Private employers with more than five employees nationwide must now offer up to five days of bereavement leave for the death of a family member (including, spouse, child, parent/parent-in-law, sibling, grandparent, grandchild, and domestic partner) to any worker employed at least 30 days prior to the leave. Employees covered by a collective bargaining agreement that provides for bereavement leave are excluded. Although the new law does not require that the leave be paid, it does authorize an employee to use other available paid leave to cover time missed due to bereavement. Employers must maintain the confidentiality of employee requests and may not retaliate, discriminate or interfere with the exercise of an employee’s rights under the bereavement law.
- Definition of family members for whom employee can take leave under the California Family Rights Act and Healthy Workplaces, Healthy Families Act of 2014 expanded (AB 1041) – This new law extends workers’ existing right to leave up to 12 workweeks in a 12-month period for family care under the California Family Rights Act and to paid sick leave under the Healthy Workplaces, Healthy Families Act to take such leave to care for “designated persons,” defined as individuals related to the employee by blood or who are not legal relatives but whose association with the employee is equivalent to a family relationship. Employees are free to designate someone as a “designated person” at the time they request family care or paid sick leave but an employer can limit an employee to identifying one designated person in a 12-month period.
- Benefit formula for Temporary Disability Insurance, including Paid Family Leave increased (SB 951) – Beginning January 1, 2025, the weekly benefits for Paid Family Leave and other covered wage replacement benefits paid through the state Disability Fund will increase from 60 percent to up to 70 percent of employee wages, or 90 percent depending on the wage rate (and subject to a cap). This law also eliminates a limitation on workers’ contributions to the Unemployment Compensation Disability Fund, as of January 1, 2024.
DISCRIMINATION/RETALIATION LAWS
- Discrimination against cannabis users prohibited (AB 523) – Although this law was signed a couple of weeks earlier in September than the others in this summary, it reflects a significant change in California employment law that employers should know. For the first time since the use of cannabis was legalized for medicinal purposes in 1996 and recreational purposes in 2016, the California Legislature has enacted certain workplace protections for cannabis users. Effective January 1, 2024, the California Fair Employment and Housing Act will be expanded to prohibit employers from discriminating in hiring, termination, or other terms or conditions of employment based on cannabis use, provided that such use is off the job and away from the workplace. Notwithstanding this change, employers still may continue to maintain drug-free workplaces and prohibit employees from possessing, using, or being impaired by cannabis on the job.
- Reproductive health decision-making added as a protected category under the Fair Employment and Housing Act (SB 523) – Signed on September 27, 2022, this new law makes it an unlawful employment practice to discriminate against an applicant or employee based on “reproductive health decision-making”, which is defined to include decisions to use particular drugs, devices, products or medical services for reproductive health.
- Retaliation relating to emergency conditions prohibited (SB 1044) – This new law extends protections against retaliation to employees who refuse to report to work or who leave the workplace during emergency conditions if they reasonably believe the workplace is unsafe. Emergency conditions include disaster or extreme peril to persons or property caused by either natural forces or a criminal act, or an order to evacuate as a result of such disaster or criminal act. The bill also prohibits employers from preventing employees access to mobile devices for purposes of seeking emergency assistance, assessing safety, or communicating with someone else to confirm their safety. An exception is made for certain categories of employees including first responders, health care workers, and those working at a military base or licensed residential care facility.
- Monitoring employees through vehicle tracking technology limited (AB 984) – Employers that install vehicle location technology on vehicles must provide notice of the monitoring and may only use the devices to monitor employees (1) during work hours, and (2) where strictly necessary for the performance of the employees’ duties. Employers must also inform employees of the right to disable the devices when not working.
COVID-19-RELATED LAWS
- COVID-19 Supplemental Paid Sick Leave extended to year-end (AB 152) – California’s COVID-19 Supplemental Paid Sick Leave (“SPSL”) law – pursuant to which employees of employers with more than 25 employees who are unable to work or telework due to certain qualifying reasons related to COVID-19 may take up to 80 hours of additional paid leave – was set to expire on September 30, 2022. Just under the wire, the Governor signed AB 152 extending employees’ ability to use SPSL balances to December 31, 2022. Under the new legislation, an employer is not obligated to pay for SPSL without documentation of COVID-19 test results and is permitted to require second and third diagnostic tests at no cost to the employee. This new law also establishes a grant relief program for small and nonprofit businesses to assist in paying for such leave, up to a maximum of $50,000.
- COVID-19 workplace notice requirements revised and continued (AB 2693) – This new law extends the sunset date of certain mandatory employer notification requirements related to potential COVID-19 exposure in the workplace from January 1, 2023 to January 1, 2024. On the plus side for employers, they now may choose to post the notice in the workplace or through existing employee portals, rather than having to individually communicate with each employee who was present in the workplace at the same time as the employee who has tested positive. The new law also removes the prior requirement to notify the local public health agency in the case of an “outbreak”.
- Rebuttable presumption relating to COVID-19 for workers’ compensation purposes extended (AB 1751) – The current workers’ compensation system creates a rebuttable presumption that an injury which includes illness or death relating to COVID-19 under certain circumstances arose out of and in the course of employment and is, therefore, compensable. This presumption was set to sunset on January 1, 2023, and has now been extended to January 1, 2024.
INDUSTRY-SPECIFIC LAWS
- Places of business open to the public for the sale of goods required to allow public access to employee restrooms (AB 1632) – Businesses that are open to the public for the sale of goods and have a toilet facility for their employees must permit individuals with an eligible medical condition to use the bathroom even if it is usually restricted to employee use, where a public restroom is not otherwise immediately available. Examples of eligible conditions include Crohn’s disease, ulcerative colitis, and irritable bowel syndrome.
- Cal/WARN Act employment protections and notice of relocation of call centers expanded (AB 1601) – This legislation authorizes the Labor Commissioner to enforce existing notice requirements concerning a mass layoff, relocation, or termination of employees, including call center employees. It also prohibits a call center from relocating its call center without notice to impacted employees and various governmental entities. Call center employers that fail to provide the required notice will be ineligible to claim a tax credit or be awarded state grants or state-guaranteed loans for a period of five years.
- Penalties established for human trafficking in the barbering, cosmetology, and hotel industries (AB 1661 and AB 1788) – AB 1661 extends existing posting requirements of Department of Justice Human Trafficking notices to the barbering and cosmetology industry and establishes civil penalties for failure to meet these requirements. Similarly, AB 1788 imposes liability with civil penalties against hotels where a supervisory employee knew or acted with reckless disregard of activity constituting sex trafficking activity without notifying appropriate parties or where any employee knowingly benefited from or acted in reckless disregard of activity constituting sex trafficking within the hotel.
Given the breadth and depth of these new statutes, employers should consider updating their policies and procedures, including employee handbooks, to ensure compliance. In addition, employers should be mindful of any employment-related changes in city and county legislation and ordinances in the localities in which they do business. We will keep you posted as the details of these new laws unfold in the coming months.
If you would like to learn more about any of these new laws or need assistance making sure your employment policies are compliant with the ever-evolving requirements of California law, please reach out to the NFC Attorney with whom you typically work or call us at 619.292.0515.