The California Legislature recently concluded this session’s work. There are many new mandates for California employers. Some “urgency” laws took effect immediately upon passage. Others take effect on January 1.
Employers must make changes now to prevent lawsuits and avoid penalties. New and revised policies and procedures, as well as management and worker training will be necessary. There are new notices to post and distribute.
This article will be in two parts. Next month, we will cover several new and revised leave of absence laws, as well as other measures not covered below.
Several new laws are intended to mitigate the continuing effects of COVID-19 on the workplace.
Supplemental sick leave. As we wrote last month, AB 1867, effective September 19, 2020, applies to businesses with more than 500 workers nationwide. Covered employers, already required to provide paid sick leave, must grant up to 80 hours of supplemental, paid sick leave to qualified workers, for specified reasons related to COVID-19.
Covered employers immediately must ensure their policies, postings, notices, and recordkeeping are in compliance with AB 1867. Unused balances must be provided with each wage statement. It is important to understand the interplay between AB 1867, other mandated sick leave, and company-provided benefits.
Businesses with fewer than 500 workers must comply with the federal Families First Coronavirus Response Act’s paid sick leave mandate. Unless extended, both the federal and state supplemental sick leave mandates expire at the end of 2020.
Workers’ Compensation. Workers may more easily claim workers’ compensation benefits for COVID-related illnesses under SB 1159, which is in effect now. Eligible workers are “presumed” to have contracted COVID-19 in the course and scope of employment, if they became ill during certain time periods. The presumptions may be rebutted, but only within a limited period.
SB 1159 also requires employers of more than 5 employees to notify carriers of a worker’s positive test for COVID-19, within three business days. Employers must work with workers’ compensation insurance carriers to comply with these new requirements.
Safety. Employers must promptly notify Cal-OSHA, certain employee groups, and public health officials of certain COVID-19 exposure at the workplace under AB 685, an urgency statute in effect now. Employers have just one business day to inform employees and Cal-OSHA when it receives notice of a COVID-19 exposure, and only 48 hours to inform public health officials of an “outbreak” as defined by the California Department of Public Health. Employers should update Injury Illness Prevention Plans and implement protocols for operating in accordance with federal, state, and local government-specified guidelines.
Another safety-related measure, AB 2537 requires hospitals to maintain certain levels of personal protective equipment, or PPE. SB 275 will expand these requirements to other industries in the future, after the state develops PPE inventory standards.
County and local governments continue to implement new ordinances as well, such as paid sick leave and “right to rehire” measures. Employers should frequently check county websites to stay abreast of these changing requirements.
Pay Data Reporting
Employers required to file a federal “EEO-1” form with the Equal Employment Opportunity Commission, i.e., most businesses with over 100 employees, must submit to the Department of Fair Employment and Housing certain pay data, broken down by specified job categories, and then by race, ethnicity, and sex. SB 973 is unclear on the form of the report, other than it must be electronically searchable. Employers and their payroll providers should work to comply by the March 31, 2021, deadline for submitting the first report.
HR Professionals Are Mandated Reporters
The existing Child Abuse and Neglect Reporting Act requires “mandated reporters” to report to authorities child abuse and neglect. The reporting obligation arises when the reporters, “in their professional capacity or within the scope of their employment, [gain] knowledge of or observe a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.” Failing to report when required to do so is a crime.
AB 1963 adds to the list of “mandated reporters” human resources professionals who accept complaints of discrimination, harassment, or retaliation. The law mainly will apply to businesses that employ children, or where children are present in the scope of the HR professional’s duties.
Covered employers must provide mandated reporters “training in child abuse and neglect identification and training in child abuse and neglect reporting.” The state’s Office of Child Abuse Prevention in the State Department of Social Services offers online training for mandated reporters.
The Legislature enacted AB 2257, which amended the independent contractor law known as “AB 5.” AB 2257, in effect now, grants to some businesses and independent contractors relief from AB 5’s stringent “ABC Test”.
One key change relaxes the “business to business” exception to the ABC Test. AB 5 required application of the ABC Test in all circumstances where a vendor’s independent contractors provide services to the hiring entity’s customers. AB 2257 will allow application of the less stringent Borello test to such service providers, in certain circumstances.
AB 2257 also adds new industries to its list of exceptions to the ABC Test, such as musicians and recording artists, freelance journalists and photographers, and others. Each exception imposes eligibility criteria, and still requires application of the old Borello standard.
To avoid liability, employers that have not already done so must evaluate all independent contractor relationships under the ABC Test or, if AB 2257 permits, the Borello standard.