Fall is a wonderful time of the year marked by pumpkins, cooler temperatures and an array of employment related bills signed into law by Governor Newsom. Below is a brief summary of the key laws impacting the workplace that employers should not ignore. Unless otherwise noted, all laws take effect on January 1, 2023.
Leaves of Absence
AB 152 which is now law, extends California’ s 2022 COVID-19 Supplemental Sick leave from September 30, 2022 to December 31, 2022. The law does not provide additional paid leave so only employees with unused supplemental sick leave can take advantage of the extension. However, employers may now require a second COVID-19 diagnostic test within at least 24 hours of a positive test.
AB 1949 requires employers with five or more employees and public sector employers to provide employees with a minimum of five days of bereavement leave upon the death of a family member (spouse, child, parent, sibling, grandparent, domestic partner, or parent-in-law). The leave is unpaid, unless the employer’s policy provides for paid leave, and must be completed within 3 months from the death of the family member. Failure to provide, or refusing to grant bereavement leave, is considered an unlawful employment practice.
AB 1041 expands the California Family Rights Act (CFRA) to allow an eligible employee to take up to 12 weeks of job protected leave to care for a “designated person” defined as any individual related by blood or whose association with the employee is equivalent to a family relationship. AB 1041 also expands the Healthy Workplaces, Health Families Act to allow an employee to use their sick leave to care for any person other than a family member, that the employee identifies at the time leave is requested. An employer may limit an employee to one designated person per 12-month period under both leave laws.
Benefits
SB 951 increases the percentage of wage replacement benefits an employee may receive under the state’s Paid Family Leave (PFL) and Disability Insurance (SDI) programs from up to 70 percent of the employee’s regular wages to up to 90 percent. The increases take effect on January 1, 2025.
SB 1126 expands the state’s CalSavers Retirement Savings Program (CalSavers) to require employers with one or more employees that do not offer a retirement savings program to establish by December 31, 2022, a payroll deposit arrangement allowing employee participation in CalSavers. Sole proprietorships, self-employed individuals and owner-operated businesses with no employees are exempt.
Salary Disclosure and Pay Data Reporting
SB 1162 makes significant changes to recruitment practices and existing pay data reporting requirements. Employers with 15 or more employees must include the pay scale in all job postings including third party job postings Additionally, employers must provide internal candidates with a pay scale upon request, a requirement already applicable for external applicants.
Employers with 100 or more employees must include the median and mean hourly rates within each job category by race, ethnicity, and gender in their annual pay data report filed with the state’s Civil Rights Department (formerly known as the Department of Fair Employment and Housing). Similarly, employers with 100 or more employees hired through labor contractors must annually report the same pay data information. Finally, employers must retain job title and wage history records for each employee during employment and three years after separation.
Workplace Safety – COVID-19 Related and Beyond
AB 1751 extends to January 1, 2024 the existing COVID-19 workers’ compensation presumption for workers who become sick with COVID-19 due to a workplace exposure.
AB 2693 allows employers to post a 15 day notice of COVID-19 exposure at the workplace and maintain a log of posting dates in lieu of individual written notices of COVID-19 exposure as required under the Labor Code (and included in the Cal/OSHA COVID-19 Prevention Emergency Standards “ETS”). Additionally, employers no longer need to notify the local public health agency of a COVID-19 outbreak. Although the current ETS is set to expire on December 31, 2022, the Cal/OSHA Standards board is considering non-emergency COVID-19 standards that would take effect once the existing standards expire. Because AB 2693 does not change regulatory requirements, employers must keep a close eye for regulatory changes impacting the new year.
SB 1044 prohibits an employer during an “emergency condition” as defined from taking or threatening to take adverse action against an employee who refuses to work because the employee reasonably believes the workplace is unsafe. Additionally, SB 1044 prohibits all employers including public entities, from preventing any employee from accessing their mobile device or other communications device for seeking emergency assistance, determining the safety of the situation, or confirming the safety of another. Although “emergency condition” is broadly defined a health pandemic, is expressly excluded from the definition. The law excludes certain employees such as first responders, disaster service workers, employees legally required to render aid or remain on premise in case of an emergency, and employees or contractors of health care facilities either providing direct patient care and such services during an emergency or is required by law or policy to participate in emergency response or evacuation.
Discrimination
AB 2188 makes it unlawful for an employer to discriminate against an employee for using cannabis off duty and away from the workplace. This does not mean pre-employment drug testing is a thing of the past. Employers may continue requiring them so long as they do not screen for non-psychoactive cannabis metabolites. There are exceptions for employees in specific industries such as construction and in positions for which a federal background investigation or clearance is required. The law does not take effect until January 1, 2024.
SB 523 amends the Fair Employment and Housing Act to make it unlawful for an employer to require an employee or applicant to disclose information related to their “reproductive health decision-making” defined as a decision to use or access a particular drug, device, product, or reproductive health medical service, or to take adverse action against such decisions.
Labor Relations
AB 2183 amends the Agricultural Labor Relations act to provide farmworkers with an option to vote by mail in union representation elections.
SB 931 authorizes a public employee union to bring a claim against a public employer before the Public Employee Relations Board (PERB) for deterring or discouraging public employees or applicants from joining or remaining members of a union.
Industry Specific Laws
AB 257 known as the Fast Food Accountability and Standards Recovery Act or “FAST” Recovery act establishes a 10-member Fast Food Sector Council to implement minimum standards on wages, working hours, and working conditions of fast food restaurant chains in California whose bands have more than 100 locations nationwide.
AB 1601 requires call centers employers with 75 employees in the current or preceding 12 months to comply with California’s Worker Adjustment and Retraining Act (Cal/WARN) 60 day notice requirement before relocating to a foreign country.
Employers Should Plan Now
As with every new year, employers must plan now for January 1, 2022 and thereafter. Several of the new laws require employer handbook and policy changes. Of course, all supervisors and managers should be informed about changes impacting their employees such as Bereavement Leave and using Healthy Families Healthy Workplaces sick leave to care for a non-family member. Start now before the holiday rush and New Year’s resolutions take center stage.