In this time of COVID and high unemployment, the California Legislature has chosen not to take its metaphorical foot off the gas.  This is the time of year when new employment laws are signed in California, and this year is no exception.

Some of these bills are “urgency measures,” meaning they take effect now.  (In addition to the ones covered below,  AB 1867’s supplemental paid sick leave for employers of > 500 workers or more, covered here, and the revision to the independent contractor law, AB 2257, covered here, are urgency statutes).

Some of these laws are COVID-related but will be effective for years to come. So, we’re not going to make a separate COVID post for them.

Finally, these new laws may require significant work to implement. So, please review carefully and talk with your lawyers.

Here’s what we have so far, in no particular order.

California Family Rights Act Expansion

The Legislature has enacted SB 1383, which is here. This is big news. It’s not COVID-related per se, but it will benefit employees needing job-protected time off for their own AND their family member’s illnesses. This law takes effect on January 1, 2021.

This law amends the California Family Rights Act to cover employers of 5 or more employees.  That mens that employers of 5 or more workers will have to give up to 12 weeks of job-protected leave, and comply with all the requirements of the California Family Rights Act.  (Leave can be for baby-bonding, adoption, illness of a covered relation, or the employee’s own illness, and also for certain reasons relating to military service). The existing CFRA applies to employers of 50 or more, although California recently had enacted a “new parent” leave for smaller employers.  That law is now going to be repealed because of SB 1383’s broader coverage.

This new law also affects larger employers covered by the old CFRA.  It does away with the requirement that an eligible employee be employed at a worksite of 50 or more workers within a 75 mile radius. So larger employers with small work-sites are now required to provide CFRA leave on the same basis as employers with large worksites.

Although leave is “unpaid,” one effect of this new law is to permit previously ineligible employees to take job protected CFRA leave and collect Paid Family Leave benefits, which did not guarantee time off.  Paid Family Leave benefits were expanded to 8 weeks a year or so ago.

This law remains separate from California’s pregnancy disability leave law. That law, Government Code section 12945, permits up to four months’ of leave for disability due to pregnancy, childbirth or related medical condition. And leave under that PDL law is separate and in addition to CFRA leave. So, in theory, even a tiny employer must now grant PDL of up to four months, and then baby bonding leave of up to 12 weeks.

Smaller employers previously exempt from CFRA / FMLA must quickly become familiar with the CFRA / FMLA requirements, including what documentation of leave is permitted, time periods for requesting and granting leave, “intermittent” leave; maintaining health benefits during leave; the independent requirement of “reasonable accommodation” leave; reinstatement to a “comparable” position and what that means; and more.  All employers in CA must amend policies that excluded employees from CFRA eligibility when their worksite was smaller than 50 employees within 75 miles. And those employers that subcontract their leaves to vendors should ensure the vendors are savvy about SB 1383. Because the vendor will not be liable for any erroneous denials…..

COVID Exposure Notice and Reporting 

AB 685 (here) is COVID-related.  This new law takes effect on January 1, 2021, and in part sunsets on January 1, 2023, when it hopefully will not be necessary.   The Department of Industrial Relations has issued FAQ’s here.

There are several components to this law, which will affect any employer who has learned an employee has been infected with COVID-19 / Coronavirus.

  • Amended Labor Code 6325 will permit Cal-OSHA to shut down a part or all of a business when, “in the opinion of the Division,”… “a place of employment, operation, or process, or any part thereof, exposes workers to the risk of infection with” COVID-19 “so as to constitute an imminent hazard to employees . . . ” Cal-OSHA will provide a notice of the quarantine to the employer to post. The shut-down area is supposed to be “limited to the immediate area in which the imminent hazard exists, and the division shall not prohibit the performance of any operation or process, entry into or use of a place of employment, or any part thereof, which is not exposing employees to, or is outside such area of imminent hazard.” This is analogous to when Cal-OSHA “red tags” a dangerous piece of equipment that is unsafe until it is rendered safe to use.
  • New Section 6409.6, is more involved:
    • Employers having received a “notice” of potential exposure (a doctor’s note, a public health official’s notification, notice from an employee that s/he has tested positive or has been told to quarantine) must take action within one business day of receiving the notice:
      • Provide a written notice to all employees and subcontractors (and their union if applicable) on premises during the “infectious period”  in a language understood by the majority of employees and English. “Notice” is defined in the statute.
      • Provide “all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as antiretaliation and antidiscrimination protections of the employee.”
      • Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.
    • Employers with multiple COVID cases (enough to be an “outbreak” as defined by the State Department of Public Health), must, within 48 hours, the employer  notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation, and worksite of employees who meet the definition in subdivision (d) of a “qualifying individual.” An employer shall also report the business address and NAICS code of the worksite where the qualifying individuals work. An employer that has an outbreak subject to this section shall continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
    • The law states employers may not “retaliate” against a worker for disclosing a positive test or diagnosis of COVID. But there is no exemption for employers who refuse to allow infected employees to work, which is an “adverse action.”  Employees claiming “retaliation” may seek relief before the Labor Commissioner.
    • This law partially exempts  a “health facility,” as defined in Section 1250 of the Health and Safety Code.  It also “shall not apply to employees who, as part of their duties, conduct COVID-19 testing or screening or provide direct patient care or treatment to individuals who are known to have tested positive for COVID-19, are persons under investigation, or are in quarantine or isolation related to COVID-19, unless the qualifying individual is an employee at the same worksite.”
    • This law requires employers to keep “records of the written notifications [to employees] for a period of at least three years.”
    • Section 6409.6 is enforceable by Cal-OSHA via the citation and penalty process.
  • Labor Code section 6432 allows Cal-OSHA to find a “serious” violation (permitting enhanced penalties) based on COVID-19 infections at work when the employer has not adequately taken steps to prevent infections or address recommended sanitation and other safe practices.  The amended section removes certain procedural hurdles so it will be easier for Cal-OSHA to find a “serious” violation with respect to COVID-19 violations than for injuries due to other unsafe practices.
Workers’ Compensation Coverage for COVID-Related Illness
Way back in May, Governor Newsom issued an Executive Order, N-62-20 extending a “presumption” of workers’ compensation coverage to COVID illnesses allegedly incurred at work. We covered that order here. Now, the Legislature has passed SB 1159 to codify the presumption and enact other Workers’ Compensation Act amendments to address COVID-19.  The bill is here.  This is one of the “urgency” statutes that takes effect immediately.  The Department of Industrial Relations has issued FAQs for employers here
Briefly, this law:
– Enacts a provision creating a “disputable presumption” that an employee’s COVID-19 illness arose in the course of employment, which can be rebutted by the employer within a certain period of time.  Working at home is not covered;
– Requires employees to use any paid sick leave available before collecting “temporary disability” benefits;
– Enacts a separate section regarding coverage of first responders such as peace officers and firefighters;
– Requires most employers to report an “outbreak” of multiple positive tests at a job site to the workers’ compensation “claims administrator.”  Failure to make a report or falsification of information may be punishable by civil penalties assessed by the Labor Commissioner.  The contents of the report and “outbreak” are defined in the statute and is different from the Cal-OSHA statute discussed above, naturally.
Settlement Agreements
The Legislature limited the use of “no re-hire” clauses last year with AB 749, which we covered last year.  This year, the Legislature tweaked the law with AB 2143 (here).  The new bill modifies Code of Civil Procedure section 1002.5 and takes effect January 1, 2001.  The law still allows employers to include no re-hire provisions in settlement agreements, but only under limited circumstances spelled out in the amended statute.  Employers’ lawyers must be careful to draft these agreements around this law, and to make sure theses provision are “severable” if they are found to be unlawful.  Additionally, employers seeking to include no re-hire provision must carefully consider what they must include in a settlement agreement to qualify for the no re-hire provision, because it may or may not be worth having the provision in the agreement. depending on the situation.
Yes, there are more new laws. These are the big ones, so far.  We’ll have more coverage later.   Also, plug time – please don’t forget to sign up for our annual legal update that covers these new statutes, other legal developments, and the big cases that came down in 2020.  These programs are always a hit.  So, check them out here.
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