The arrival of autumn has brought new employment and labor legislation to employers that will usher in major changes for many businesses. As leaves turn crisp and brown and pumpkins and Halloween decorations begin to line the porches of our neighborhoods, employers should learn and understand the consequences of employment and labor bills that were signed into law in September by Governor Gavin Newsom. As a result, autumn will be a critical period for California employers, who have had a bizarre and taxing year, to say the least. California employers were not only subject to a slew of unprecedented COVID-19 related legislation, but businesses had to learn to adapt to a “new normal” during a pandemic and establish a safe workplace for employees. As the below summaries of the latest California legislation demonstrate, California employers are not out of the woods yet.
AB 685 – Employer COVID-19 Reporting Obligations
*SIGNED INTO LAW ON SEPTEMBER 17, 2020*
Governor Newsom recently signed AB 685 into law, which requires public and private California employers to provide notices to employees when there is a COVID-19 exposure in the workplace, and to provide notice to local public health departments for COVID-19 “outbreaks.” When an employer receives notice of potential exposure of an employee to COVID-19, California employers are required to take all the following actions within one business day:
- Provide written notice to all employees who were at the worksite of the potentially exposed person within the infectious period that they may have been exposed to COVID-19;
- Provide written notice to any union representative of the employees described above;
- Provide employees who may have been exposed to COVID-19 and their union representatives information regarding applicable COVID-19-related benefits under federal, state or local law and protections for employees against retaliation and discrimination; and
- Notify all employees and their union representatives of the disinfection and safety plan the employer will implement and complete pursuant to Centers for Disease Control and Prevention (CDC) guidelines.
The new law also defines the following as “triggers” for the above notice requirements:
- Notification from a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite;
- Notification from an employee or their emergency contact that the employee is a “qualifying individual”;
- Notification through the testing protocol of the employer that the employee is a “qualifying individual”; or
- Notification from a subcontracted employer that a “qualifying individual” was on the worksite.
For the purpose of AB 685, a “qualifying individual” is someone who: (1) has a laboratory-confirmed case of COVID-19; (2) has a positive COVID-19 diagnosis from a licensed health care provider; (3) has a COVID-19 related order to isolate from a public health official; or (4) has died from COVID-19. Further, if the number of cases meets the definition of a COVID-19 “outbreak” as defined by the State Department of Public Health (three cases), the employer must provide notice within 48 hours to the local public health agency.
In addition, the new law provides vague and conflicting language in describing the language that must be included in the notice and different types of notice that must be provided to different categories of employees.
Please reach out to your Jones Bell representative if you need assistance in determining whether you need to provide notices under AB 685 and drafting such notices for your employees. AB 685 goes into effect on January 1, 2021.
SB 1383 – Expansion of the California Family Rights Act (CFRA)
*SIGNED INTO LAW ON SEPTEMBER 17, 2020*
Governor Newsom signed SB 1383 into law last week, which requires small employers in California – those with only five employees or more – to provide eligible employees up to 12 unpaid weeks of family care and medical leave each 12 months. SB 1383 also expands the definition of “family members” for whom leave can be taken under the CFRA to include, among others, grandparent, grandchild, sibling or domestic partner. Additionally, SB 1383 adds the “child of a domestic partner” to CFRA’s definition of “child.” In other words, there is now a new category of “child” that an employee may be entitled to take leave either to care for or for bonding, under the new law. Thus, both small and large California employers are significantly impacted by SB 1383 because they will be required to provide job-protected leave in circumstances that were not previously covered by CFRA.
The changes made to CFRA by SB 1383 are historic because, prior to the Governor signing SB 1383, only private sector employers of 50 or more employees and state and local government agencies were subject to CFRA. In addition, CFRA previously mirrored the language and requirements of its federal counterpart, the Family Medical Leave Act (FMLA). As a result of SB 1383, CFRA encompasses a large number of small employers who were previously not subject to the FMLA. However, the FMLA will continue to cover private employers only if they employ 50 or more employees. Therefore, although smaller California employers may now be covered by CFRA due to changes enacted by SB 1383, they will nevertheless remain beyond the reach of the FMLA.
SB 1159 – Workers Compensation Claims for COVID-19: Presumptions against Employers
*SIGNED INTO LAW ON SEPTEMBER 17, 2020*
Governor Newsom also signed SB 1159 into law last week, which went into effect immediately as urgency legislation as Labor Code sections 77.8, 3212.86, 3212.87 and 3212.88. The new law includes illness, injury or death due to COVID-19 as an “injury” under the state’s Workers Compensation Act. Further, the bill establishes a rebuttable presumption that the injury arose in the course of the claimant’s employment and is compensable under the Act. The bill provides that a workers compensation claim for a COVID-19 injury would be presumptively compensable when the claim is not disputed within 30 or 45 days after being made. SB 1159 is larger in scope than a similar Executive Order signed by Governor Newsom on May 6, 2020, Executive Order N-62-20, which provided that California workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system. This Executive Order remained in effect only until July 5, 2020. Labor Code sections 77.8, 3212.86, 3212.87 and 3212.88 will be repealed effective January 1, 2023.
AB 1867 – Supplemental COVID-19 Paid Sick Leave
*SIGNED INTO LAW ON AUGUST 30, 2020*
This new law codifies Executive Order N-51-20, which mandates up to 80 hours of paid sick leave for “food sector workers” that work for employers with 500 or more employees. However, AB 1867 also enacts a similar supplemental paid sick leave requirement that applies to employers in other industries with 500 or more employees, defined in the bill as “hiring entities.” A “hiring entity” is any private entity that employs 500 or more employees in the United States. Additionally, the law applies to any entity – including a public entity – that is subject to the federal FFCRA and that elected to exclude health care provider or emergency responder employees from the FFCRA’s emergency paid sick leave requirements
Employees who work for covered employers under the new law will be permitted to take paid sick leave for the following reasons:
- The worker is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
- The worker is prohibited from working by the hiring entity due to health concerns related to the transmission of COVID-19.
SB 973 – New Pay Data Reporting to the DFEH
*SIGNED INTO LAW ON SEPTEMBER 30, 2020*
Beginning March 2021, SB 973 would require employers with 100 or more employees to provide pay data information by race, ethnicity, and sex to the California Department of Fair Employment and Housing. This bill is similar to an Obama-era rule issued by the Equal Employment Opportunity Commission (EEOC), which required large companies (with 100 or more employees) to confidentially report to the EEOC information about what they pay their employees by job category, sex, race, and ethnicity. The Trump administration rescinded this rule, and, after years of litigation, the EEOC decided that it would only collect such information for a limited period and would not require such information to be provided in the future. Thus, this bill is largely the result of longstanding efforts by California legislators to enact a similar version of the federal rule to identify and eliminate pay inequities in employment.