Come the new year, California employers will need to comply with a host of new workplace-related laws. Here is an overview of key new laws, along with recommendations for compliance. The laws take effect on January 1, 2023, unless otherwise specified.
CFRA and Sick Leave Expansion to Cover Care of “Designated Person” – AB 1041
AB 1041 expands the California Family Rights Act (“CFRA”) and California’s paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014) to allow covered employees to take leave to care for a “designated person.”
Under CFRA, employers with five or more employees must permit covered employees to take up to a total of 12 workweeks in a 12-month period for family care and medical leave. The class of people an employee could take leave to care for under CFRA previously included individuals with whom the employee had specific relationships (i.e., spouse, child, parent, etc.), but will now also include a “designated person.” The new law defines “designated person” as an individual who is related by blood to the employee or whose association with the employee is the equivalent of a family relationship. An employee requesting to take CFRA leave to care for a designated person may identify the designated person at the time the employee requests the leave. An employer may limit an employee to one designated person per 12-month period.
The bill also amends the California paid sick leave law to permit the use of sick leave to care for a “designated person.” In particular, the definition of “family member” will now include a designated person, which for sick leave purposes simply means a person identified by the employee at the time the employee requests to take paid sick leave. As with CFRA, the employer may limit an employee to one designated person per 12-month period for purposes of the paid sick leave law.
Employers should review leave policies and update them to permit use of CFRA and paid sick leave to care for a designated person of the employee’s choosing. Ensure that HR or any other person(s) tasked with administering family and medical leave and sick leave requests are made aware of the update.
Bereavement Leave – AB 1949
AB 1949 amends CFRA to add a new bereavement leave requirement. Employers with five or more employees will now be required to provide employees employed for at least 30 days with up to five days of bereavement leave upon the death of a family member. The leave must be used within three months of the date of death and does not need to be taken on consecutive days. Employers may require that the employee submit documentation of the death of the family member within 30 days of the first day of the leave.
The new law provides that the bereavement leave will be taken under an employer’s bereavement leave policy, if one already exists, and specifies how to coordinate the new bereavement leave requirement with an existing bereavement leave policy, as follows:
- If an existing policy provides for fewer than five days of paid bereavement leave, the remainder of the days may be unpaid, and an employee may use other accrued paid leave available to the employee to cover those days.
- If an existing policy provides for fewer than five days of unpaid bereavement leave, the employee will nonetheless be entitled to at least five days of unpaid bereavement leave, and may use other accrued paid leave available to the employee to cover those days.
If there is no existing policy, then the five days of bereavement leave may be unpaid, and an employee may use other accrued paid leave available to the employee to cover those days.
Employers should immediately revise existing bereavement leave policies as needed, or prepare a new policy. Note, in particular, that employees are permitted to take the bereavement days off non-consecutively.
Off-Duty Cannabis Use Protections – AB 2188
Effective January 1, 2024, AB 2188 will make it unlawful under the California Fair Employment and Housing Act for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, based on:
- The person’s use of cannabis off the job and away from the workplace; or
- An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites.
Notably, nothing in the new law permits an employee to possess, be impaired by, or use, cannabis on the job, or affects employer rights or obligations to maintain a drug- and alcohol-free workplace. The new law does not apply to employees in the building and construction trades, or to applicants or employees hired for positions that require a federal background investigation or security clearance under applicable federal law.
Employers should review workplace drug policies and practices to ensure that such policies do not penalize employees for off-duty cannabis use or based on a drug screening that has indicated the existence of nonpsychoactive cannabis metabolites in the employee. Employers should also refrain from inquiring about covered employees’ use of cannabis off the job and away from the workplace.
Protections for Reproductive Health Decision Making – SB 523
SB 523, the Contraceptive Equity Act of 2022, amends various California laws to further the goal of decreasing sexual and reproductive health disparities and ensuring greater health equity in contraceptive care.
Most relevant to employers is the addition of “reproductive health decision making” to the list of protected classes under the California Fair Employment and Housing Act. Furthermore, the new law makes it unlawful for an employer to require, as a condition of employment, continued employment, or benefit of employment, that an applicant or employee disclose information relating to their reproductive health decision making. The new law also states that discrimination based on “sex” includes discrimination based on reproductive health decision making.
“Reproductive health decision making” is defined to include, without limitation, a decision to use or access a particular drug, device, product, or medical service for reproductive health.
Employers should review EEO, anti-harassment, and anti-discrimination policies and expressly include “reproductive health decision making” as a protected characteristic.
Pay Transparency – SB 1162
As discussed in our previous post, which can be found here, SB 1162 sets new pay transparency requirements, including to require employers of 15 or more employees to disclose pay scales in job postings and to require all employers to provide pay scales upon request to existing employees. Private employers of 100 or more employees will also be required to comply with new pay data reporting requirements.
Notice of COVID Exposure – AB 2693
Currently, within one day of learning about a positive COVID case in the workplace, employers are required to provide written notice of potential exposure to all employees who were on the premises at the same worksite as the COVID case. AB 2693 extends the notice requirement to January 1, 2024, and provides that an employer may now satisfy the notice requirement by prominently posting a notice that includes the dates on which an employee with a confirmed case of COVID was on the premises within the infectious period, and the location of the exposure. The notice must remain posted for 15 days in a location where workplace rules and regulations are usually posted, as well as on an employee portal (if applicable). Employers must also keep a log of all the dates the notice was posted at each of its worksites and allow the Labor Commissioner to access these records.
Employers should update COVID notification procedures to account for the fact that the exposure notice requirement can now be satisfied via a posting.
Workers’ Rights in Emergencies – SB 1044
SB 1044 prohibits employers from taking or threatening adverse action against an employee for refusing to report to, or leaving, a workplace or worksite because of the employee’s reasonable belief that the workplace or worksite is unsafe in the event of an emergency condition. Employers also may not prevent employees from accessing their mobile or other communications devices to seek emergency assistance, assess the safety of the situation, or communicate with a person to verify their safety. If feasible, employees must notify the employer of the emergency condition that required the employee to leave or refuse to report to the workplace or worksite, prior to leaving or refusing to report. If prior notice is not feasible, the employee must provide notice as soon as possible.
An “emergency condition” is the existence of (i) conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act, or (ii) an order to evacuate a workplace, worksite, worker’s home, or school of a worker’s child due to a natural disaster or criminal act. An “emergency condition” notably does not include a health pandemic.
An employee has a “reasonable belief that the workplace or worksite is unsafe” if a reasonable person, under the circumstances known to the employee at the time, would conclude that there is a real danger of death or serious injury to the person if they enter or remain on the premises. In assessing whether the employee had a reasonable belief, certain factors, such as the existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations, may be considered if the employee knew this information at the time of the emergency condition or was trained on the health and safety regulations specific to the emergency condition.
Various categories of employees are exempted from this law, such as first responders, disaster service workers, employees required by law to render aid or remain on the premises in emergency situations, employees or contractors of certain health care facilities, and employees of certain residential care facilities.
Employers should review existing emergency-related policies and protocol to confirm that nothing prevents employees from refusing to report to, or leaving, the workplace or worksite in the event of an emergency if the employee reasonably believes that the workplace or worksite is unsafe. Employers should also review policies, including any mobile device policy, to ensure that employees are not prevented from using their mobile or other communications devices in emergency situations. Managers and other employees tasked with aiding in emergency response should be trained on this new law as well.
Employee Notice of Health and Safety Citations – AB 2068
Under existing law, employers are required to prominently post Cal-OSHA citations and orders at or near each place where a violation referred to in the citation or order has occurred. AB 2068 now requires employers to also post a separate employee notification regarding the citation or order. The new employee notices must be in English and the top seven non-English languages used by limited-English-proficient adults in California (as determined by the United States Census Bureau’s most recent American Community Survey), as well as in Punjabi (if Punjabi is not one of those languages). The form of notice will be made available by Cal-OSHA, and must be posted for the longer of three working days or until the unsafe condition is abated.
Extension of COVID Workers’ Compensation Presumption – AB 1751
AB 1751 extends the COVID presumption under California’s workers’ compensation law until January 1, 2024. Under the COVID presumption, which was originally created by Executive Order N-62-20 and codified by SB 1159, there is a rebuttable presumption that an employee’s illness related to COVID is an occupational injury and thus eligible for workers’ compensation benefits, so long as certain criteria are met, making it easier for employees to receive coverage for COVID.
Cal/WARN Applicability to Call Center Relocations – AB 1601
AB 1601 will require call center employers to comply with requirements under the California Worker Adjustment and Retraining Act (“Cal/WARN”), including the requirement to provide 60 days’ advance notice, when ordering a relocation of a call center, or of one or more facilities or operating units within a call center constituting at least 30 percent of the workforce, to another country. The new law also directs the Employment Development Department to compile and publish a list on its website of call center employers that provided notice of relocation. Employers on that list, and those that should be on the list but failed to provide notice, would be ineligible for awards or renewals of direct or indirect state grants or state-guaranteed loans for five years after the date that the list is published, and would be ineligible to claim a tax credit for five taxable years beginning on and after the date that the list is published. In limited circumstances, the ineligibility may be waived upon the call center employer’s written request to the agency if the agency determines that the call center employer demonstrates good cause to do so (which may include job loss or adverse impact on the state).