Hi, everyone. This post is a lot, but it’s worth the read. As you know, there are a lot of new laws that have been passed in the last two weeks as the California legislative session drew to an end. Here are the key new laws that might affect your business. The first several sections affect nearly everyone in The Employers’ Council. We're going to cover these in more detail at the TEC End of Year Review (tentatively, we are trying to set a live presentation on November 16, 2022, so save the date) but wanted you all to have a feel for what is coming. Due to the significant changes to the law discussed below, employers employee handbooks this year, especially if it’s been a few years since you last updated.
The following is not legal advice. If you would like our opinion on how these new laws apply to your specific business practices, please contact Young, Cohen & Durrett, LLP.
AB 1949 Bereavement Leave
AB 1949 requires employers with five or more employees to allow employees to take up to five days of bereavement leave upon the death of a family member (spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law). This bereavement leave is unpaid, but employees could use other paid leave available to them, such as vacation or paid time off. Bereavement leave must be completed within three months of the death of the family member and is only available to employees who have worked for the employer for at least 30 days prior to the commencement of the leave. There is currently no apparent limit for how many times this bereavement leave may be used each year, so it is advisable to require documentation, as allowed by the law, showing who died and when.
AB 1041 Family Leave Expansion to “Designated Persons”
AB 1041 provides that, in addition to the already-covered family members, an employee can take job-protected leave to care for a “designated person.” The bill defines a “designated person” as any individual related by blood or whose association with the employee is the “equivalent of a family relationship.” There is no further guidance on what constitutes the “equivalent of a family relationship.” Under this law, an employee may identify a “designated person” in advance or when they are requesting the leave, and an employer may limit an employee to one “designated person” per 12-month period.
Supplemental COVID-19 Paid Sick Leave Extension
Previous law set Supplemental COVID-19 Paid Sick Leave (SPSL) to expire on September 30, 2022. The Governor has signed AB 152, which extends SPSL to December 31, 2022.
A few key differences between this extension and the previous law include the following:
Employers are not required to provide new or additional SPSL to employees who have already used their allotment for 2022.
Employers are allowed, if an employee’s second COVID-19 test is positive, to require a third test within 24 hours.
Employers would be allowed to deny additional SPSL to employees who refuse to test.
Importantly, this bill establishes a California Small Business and Nonprofit COVID-19 Relief Grant Program. Grants may be available to qualified small businesses and nonprofit organizations for actual costs incurred for SPSL between January 1, 2022, and December 31, 2022.
Extension of Other COVID-19 Requirements
The Governor signed two other COVID-19-related laws that were set to expire at the end of the year—AB 2693 and AB 1751.
AB 2693 extends the requirement to provide notice to employees and others who may have been exposed in the workplace. Previous law was set to expire on January 1, 2023, but this law extends the requirement to January 1, 2024. AB 2693 changes the notice requirement to allow employers to post a notice in the workplace for 15 days when there has been a COVID-19 exposure, rather than providing individual notice. That being said, Cal/OSHA may itself require individual notice. Employers will need to monitor Cal/OSHA’s proposed, more permanent standard closely.
Additionally, AB 1751 extends the “rebuttable presumption” that certain COVID-19 cases are work-related for workers’ compensation purposes until January 1, 2024.
SB 1162 Pay Data Reporting Expansion
SB 1162 expands pay data reporting requirements, including requiring all private employers with 100+ employees to file pay data reports; requiring such reports to include median and mean hourly rates within each job category by race, ethnicity, and sex; changing the due date for such reports from March to May of each year; and establishing heavy civil penalties if the reports are not submitted properly.
Importantly, as a part of this new law, employers with 15+ employees will be required to include pay scale information on job postings starting January 1, 2023.
SB 1044 Emergency Conditions
Subject to certain exceptions, SB 1044 prohibits employers, in the event of an emergency condition, from taking or threatening adverse action against employees for refusing to report to, or leaving, work within the area affected by the emergency condition because the employee has a reasonable belief that the workplace is unsafe. An emergency condition is defined as a condition 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 an order to evacuate a workplace, worksite, worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. The law explicitly states that an emergency condition does not include a health pandemic.
Employers also may not prevent employees from accessing their mobile devices to seek emergency assistance, assess the safety of the situation, or communicate with another person to verify their safety, with a few exceptions.
AB 2188 Cannabis Discrimination in Employment
Per AB 2188, starting January 1, 2024, it will be unlawful for employers (outside of various federal jobs or those in the building and construction trades) to discriminate against employees based on their use of cannabis off the job and away from the workplace or based on an employer-required drug screening for nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. This law does not prohibit the use of alternative testing methods including impairment tests and tests which identify the presence of THC in an individual’s bodily fluids.
Employers may still prohibit employees from possessing, being impaired by, or using cannabis on the job, and the law does not apply to applicants or employees hired for positions which require a federal government background investigation or security clearance, positions requiring drug testing under federal or state law, employees receiving federal funding or federal licensing-related benefits, or entering into a federal contract.
AB 2183 Agricultural Employee Card Check
Under AB 2183, each January, an agricultural employer must decide whether they would agree to a “labor peace compact” (LPC). Among other things, this would prohibit the employer from making statements against a union in any organizing campaign or conducting “captive audience” meetings with employees. If the employer agrees to an LPC, the employees will be able to vote on a union via a new mail-in ballot process if they so choose (rather than the current secret ballot process). However, if the employer does not agree to sign an LPC, then employees may select a union via “card check” without an election if they so choose.
AB 257 Fast Food Sector Council
AB 257 creates an unelected governing body called the “Fast Food Sector Council.” Once certain conditions are met, the Council will have authority to determine industry-wide standards on wages, working hours, and other working conditions applicable to the fast food industry. Importantly, in the law, a “fast food restaurant” is defined as any establishment that is part of a fast food chain (a standardized set of restaurants consisting of 100 or more establishments nationally). The Council’s proposals will be presented to the Legislature and will take effect unless the Legislature chooses to step in to prevent them from taking effect. Be aware that this may affect working conditions and pay in more industries than just fast food if the Council raises the working standards of fast food significantly.
No Extension of California Consumer Privacy Act Employer Exemption
The Legislature did not extend the exemption to the California Consumer Privacy Act (CCPA) for employee personal information (and a related exemption for business-to-business data). The current exemption expires at the end of the year. Because of this, employers should be prepared to comply with all applicable CCPA requirements with respect to employee data by January 1, 2023 if they meet one of the following three criteria: 1) gross annual revenue in excess of $25 million; 2) alone or in combination with others, annually buys, sells, or shares the personal information of 100,000 consumers or households; or 3) derives at least 50% of its annual revenue from selling or sharing consumers’ personal information.
Cal/OSHA Monkeypox Guidance
On September 15, 2022, Cal/OSHA posted a guidance on monkeypox for workers in California covered by the Aerosol Transmissible Disease (ATD) standard, such as healthcare facilities and public health services. For employers not covered by the ATD standard, Cal/OSHA has emphasized that must protect employees from monkeypox under their Injury and Illness Prevention Programs (IIPP).
Other industries should be ready for a similar protocol in their industries if monkeypox continues to spread.
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