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  • New California Employment Laws Effective Now, Coming January 1

     JAMES W. WARD  OCTOBER 1, 2020

    It’s the first day of October, which means the leaves are starting to turn red and orange, pumpkin spice is everywhere, everyone is looking longingly at their sweaters — and new employment laws are here! September 30, 2020, was the last day of this year’s legislative session, which ended with California Governor Newsom signing a flurry of bills with a few vetoes as well. Here’s a look at some of the new employment-related laws that employers should be aware of, which, unless otherwise stated, are effective January 1, 2021.  

    COVID-19-Related Laws

    The legislature responded to the COVID-19 pandemic with several new laws. Governor Newsom signed SB 1159, which establishes a rebuttable workers’ compensation presumption for workers that contract COVID-19 under certain conditions and requires employers to report COVID-19 cases to their workers’ compensation carriers. The bill went into effect immediately upon signing and remains in effect until January 1, 2023.

    AB 1867 also took effect immediately upon being signed, which was September 9, 2020. That bill expands supplemental paid sick leave for COVID-19-related reasons for certain employers not already covered by the federal Families First Coronavirus Response Act (FFCRA). That law will expire when the FFCRA does (currently set to expire on December 31, 2020).

    AB 685 establishes stringent COVID-19 recording and reporting requirements when employers receive notice of a potential COVID-19 exposure at the workplace. Among other things, AB 685 requires employers to provide a number of notices to different groups of employees within one business day after receiving notice of a potential COVID-19 exposure. Employers must also notify their local public health department if an “outbreak” occurs at the worksite. The bill increases the California Division of Occupational Safety and Health’s (Cal/OSHA) enforcement authority related to COVID-19. AB 685 takes effect January 1, 2021.

    AB 2043, another urgency measure that went into effect immediately when signed (which was September 20, 2020), requires Cal/OSHA to disseminate, to agricultural employers and employees, information on the best practices to prevent COVID-19 infections, both in English and Spanish. This law only remains in effect until the end of the state of emergency.

    Finally, the Governor signed two bills related to personal protective equipment (PPE). AB 2537 requires public and private employers of workers in a hospital to supply certain employees with PPE, maintain a three-month stockpile of PPE and provide inventory information to Cal/OSHA upon request. SB 275 requires the state to develop a stockpile of PPE, and, beginning January 1, 2023, certain employers must maintain PPE stockpiles as specified.

    Leaves of Absence

    SB 1383 significantly expands the California Family Rights Act (CFRA) beginning January 1, 2021. Notably, this bill expands employer coverage to include all employers with five or more employees, which is much fewer than the previous 50 or more employees’ requirement. This is a major development. Small businesses will need to quickly get up to speed on CFRA’s requirements in order to be ready by January 1.

    SB 1383 also expands the definition of “family members” beyond what is covered under the federal Family and Medical Leave Act (FMLA), which will impact larger employers who will have to administer CFRA and FMLA separately in some cases. For example, an employee can take 12 weeks of leave to care for a sibling under the CFRA and then another separate 12 weeks to cover an illness under the FMLA for total of 24 weeks of protected leave. Employers, big and small, should become familiar with the law’s details and be prepared to revise or implement compliant policies and practices by 2021.

    AB 2992 expands the prohibition on discrimination and retaliation against employees that are victims of crime or abuse when they take time off for judicial proceedings or to seek medical attention or related relief for domestic violence, sexual assault, stalking or other crime that causes physical or mental injury.

    Currently, an employee can use up to half of their accrued sick leave to care for a family member, also known as “kin care.” AB 2017 revises the law to clarify that the employee has the right to designate sick leave as kin care, or not, in order to avoid a designation error and unintentional draw down of kin care time when the sick days were actually taken for personal sick leave.

    Worker Classification

    It was only last year that the biggest labor law development was the new worker classification law, AB 5, which codified the California Supreme Court’s Dynamex ruling, using the ABC test to determine whether a worker is an employee or independent contractor, while at the same time creating numerous exceptions to the test. Early in this year’s legislative session, roughly 30 bills were introduced to either repeal or revise AB 5. In the end, only one bill survived and was signed into law, AB 2257. The bill doesn’t change the underlying framework of AB 5, but it makes some revisions and clarifications to some of the existing exceptions and added new ones. AB 2257 went into effect when it was signed on September 4, 2020.

    Wage and Hour

    Notably, AB 1947 extends the time an individual can file a complaint of discrimination or retaliation with the California Division of Labor Standards Enforcement (DLSE), also known as the California Labor Commissioner. Under current law, workers alleging they were discriminated or retaliated against in violation of any Labor Commissioner-enforced law have six months to file a complaint with the Labor Commissioner, but beginning January 1, 2021, AB 1947 extends that time to one year.

    A couple of narrow industry-specific rest break bills were signed this year. AB 1512 allows security guards to remain on the premises during rest periods and to remain on call during the rest period. If work interrupts the rest period, the security guard must be permitted to restart the rest period as soon as practicable. AB 2479 extends a limited on-call rest break exception for safety-sensitive positions at petroleum facilities to 2026.

    Pay Data

    Another notable signed bill is SB 973. This bill requires a private employer, that has 100 or more employees and is required to file an annual Employer Information Report (EEO-1) under federal law, to submit a pay data report to the Department of Fair Employment and Housing (DFEH) that contains information about employees’ race, ethnicity and gender in various job categories on or before March 31, 2021. The DFEH is given related enforcement authority. This essentially creates California’s version of the federal EEO-1 information that some employers must submit to the federal Equal Employment Opportunity Commission (EEOC).

    California Consumer Privacy Act (CCPA)

    The CCPA provides California consumers rights over how and whether the personal data they provide to businesses is collected, retained and sold. Because its definitions are broad, employee data that employers collect for employment purposes was included. Last year, AB 25 largely exempted employee data from the CCPA for one year, and now AB 1281 extends the exemption for one more year to the end of 2021. Employers must still comply with the CCPA’s requirement to provide notice before, or at the time of, collecting personal information from an applicant or employee that describes every category of information that will be collected and the purposes for which it will be used. CCPA regulations describing how employers can give a compliant notice are now in effect.  

    Vetoes

    Finally, Governor Newsom vetoed some CalChamber-opposed bills , including Job Killer AB 3216. That bill would have imposed a “right to recall” mandate on certain industries in California, meaning employees who were laid off or furloughed as a result of COVID-19 must be hired back by the company according to seniority. This bill would have imposed burdensome mandates on some of the industries hit hardest by the pandemic. Recognizing the issues with the bill, Governor Newsom vetoed it.