The state of California passed several new pieces of legislation that have either recently gone into effect or will take effect on January 1, 2021. They will impact nearly all employers and affect how they handle COVID-19 related issues, leaves of absence, workers’ classification, discrimination disputes, arbitration agreements, union relations, and other issues. A new presidential administration also brings potential changes to labor regulations.
Below are explanations of key issues that may impact employers in 2021. To read additional information on legislative issues, visit the SCGMA Legislative Updates page and our COVID-19 page.
AB 685 – COVID-19 Reporting Obligations and Workplace Safety
AB 685 adds to California’s COVID-19 health and safety related laws. Additional employer reporting obligations are required and Cal/OSHA’s authority is expanded to issue shutdown orders for workplaces that pose a risk of an “imminent hazard” relating to COVID-19.
AB 685 establishes stringent COVID-19 recording and reporting requirements when employers receive “notice of a potential exposure to COVID-19” 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 potential COVID-19 exposure.
AB 685 also requires employers to notify their local public health agency within 48 hours of a COVID-19 “outbreak,” as defined by the California Department of Public Health (CDPH). At the time of publication, the CDPH defined an outbreak in most instances as three lab-confirmed cases within two weeks, though the department could revise this definition. Update your COVID-19 Prevention Plan to include how you will handle these additional requirements.
What this means for employers: Employers should update their written COVID-19 employee protocols and prepare template notices that include the information required under the new law.
SB 1159 – COVID-19 Workers’ Compensation Presumption
SB 1159 creates a disputable workers’ compensation presumption that illness or death related to COVID-19 is an occupational injury and therefore eligible for benefits.
What this means for employers: The presumption is disputable, meaning that employers have an opportunity to refute the presumption by providing evidence to indicate that an employee did not contract COVID-19 at the workplace. Employers should ensure that they implement adequate measures to reduce potential transmission of COVID-19 in the workplace and that these measures are well documented.
AB 1867 – Families First Coronavirus Response Act (FFCRA)
AB 1867 also took effect immediately upon being signed on September 9, 2020. This 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) — specifically, employers with 500 or more employees nationwide, as well as health care providers and first responders that are excluded from FFCRA.
Employees who work for covered employers can take COVID-19 supplemental paid sick leave if the worker is:
- Subject to a federal, state or local quarantine or isolation order related to COVID-19;
- Advised by a health care provider to self-quarantine or self-isolate due to concerns related to
COVID-19; or - Prohibited from working by the employer due to health concerns related to the potential
transmission of COVID-19.
The required FFCRA is set to expire on 12/31/20.
Temporary Cal/OSHA COVID-19 Prevention Rule
California’s Office of Administrative Law approved Cal/OSHA’s emergency COVID-19 Prevention Rule, which will remain in effect through at least October 2, 2021. One of the key provisions of the new rule requires California employers to establish and implement a written prevention program tailored toward preventing the spread of COVID-19 in the workplace. This is a stand-alone document that must include five compliance categories: COVID-19 Prevention Program, Outbreaks, Major Outbreaks, Employer-Provided Housing, and Employer-Provided Transportation. In addition to following the state and federal guidelines, it is important you comply with any local ordinance
What this means for employers: This rule is expansive and imposes a number of significant burdens on employers. Employers should consult with counsel upon reviewing each of the Rule’s mandates to ensure compliance.
SB 1383 – Significant Expansion of Family Leave Requirements to Almost All CA Employers
SB 1383 requires all employers with 5 or more employees to provide eligible employees with up to 12 weeks of job-protected leave under certain circumstances and expands the list of covered family members for whom employees may use leave to care for to include siblings, grandparents, and grandchildren.
If you have not been covered by the CFRA in the past it is important that you prepare a policy demonstrating your business’ compliance. For employers that have more than 50 employees and have already been under the CFRA you must update your policy to eliminate geographical requirements for eligibility and family members defined for taking the leave.
What this means for employers: Navigating the interaction between various leaves promises to become even more complicated with the passage of the new bill. California employers should consult with labor counsel in assessing their obligations under the new law and its interplay with other leave laws, to ensure that they are complying with the mandates of each.
Independent Contractors: AB 2257 Significantly Changes AB 5 on Classification of Workers
California’s statute governing the classification of independent contractors underwent fundamental changes when AB 2257 became law. The new exemptions and revisions apply to exemptions for business-to-business relationships, referral agencies, professional services, performance artists, and other classifications.
What this means for employers: AB 2257 provides additional carve-outs of the rigid ABC test used to determine if employees are independent contractors, but does not necessarily provide safe harbors for businesses seeking to use independent contractors instead of employees for specified roles and aspects of their business. Companies are encouraged to contact qualified labor and employment counsel when bringing on new workers as either independent contractors or employees.
AB 2017 – Employee Will Have Sole Discretion to Designate Paid Sick Leave Time
AB 2017 specifies that sick leave being used to care for an employee or employee’s covered family member, or obtain relief if the employee is a victim of domestic violence, sexual assault, or stalking, is at the employee’s “sole discretion.”
What this means for employers: This will primarily impact employers with sick leave policies that provide annual use caps exceeding the minimum requirements of the state and/or any local ordinance. Employers with such policies may consider implementing tracking procedures to differentiate between sick leave use that an employee designates as protected under the bill.
AB 2992 – California Has Expanded Protections for Employees Who Are Victims of a Crime or Abuse
AB 2992 amends and expands the protections given to employees who take time off to serve on a jury, appear in court pursuant to a subpoena or court order, or to seek medical attention if they are the victim of a crime.
What this means for employers: Employers may wish to revise applicable policies and circulate them no later than January 1, 2021. Employers should also consider educating supervisors, managers, and human resources personnel regarding these changes.
AB 2143 – No Rehire Clauses in Settlement Agreements in Employment Disputes
AB 2143 permits the use of no-rehire provisions in the settlement agreements of employment-related disputes where the aggrieved party has engaged in sexual harassment, sexual assault, or any criminal conduct.
What this means for employers: An employer may only lawfully include the no-rehire provision when the employer has made and documented a good faith determination – before the aggrieved person filed the claim – that the aggrieved person engaged in certain types of criminal conduct.
AB 1947 – Discrimination, Harassment, and Retaliation Protections
AB 1947 extends the time an individual can file a complaint of discrimination or retaliation with the DLSE, also known as the Labor Commissioner. Under current law, workers alleging they were discriminated or retaliated against in violation of any law enforced by the Labor Commissioner have six months to file a complaint with the Labor Commissioner; beginning January 1, 2021, AB 1947 extends that time to one year.
New Data Reporting Requirements for Employers
Beginning January 1, 2021, private employers with 100 or more employees who are required by federal law to file an annual Employer Information Report will also be required to report to the DFEH pay and hours-worked data by job category and by sex, race, and ethnicity.
What this means for employers: Because the pay data report due in 2021 will be based on pay data from this year, employers should begin preparing for compliance by ensuring that they can generate the required data for their first reports. Employers should work with counsel to review their pay practices and assess any pay disparities that may exist.
Minimum Wage
California’s statewide minimum wage continues to increase each year, as scheduled, until all employers reach $15/hour in 2023. Beginning January 1, 2021, employers with 26 or more employees will need to pay their employees no less than $14/hour, and employers with 25 or fewer employees will need to pay their employees no less than $13/hour. However, employers covered by local minimum wage ordinances are subject to higher rates than what the state requires.
It’s important that you make sure your employees are making the minimum wage on 1/1/2021 and if you local minimum wage law is more generous than the state you must comply with the local law. You also need to ensure that exempt employees are meeting the minimum monthly salary requirement of no less than two times the state minimum wage for full-time employment. It is based on the current state minimum wage, not any applicable local minimum wage.
Anticipated Changes in Labor-Management Relations Laws Under a Biden Administration
As President-elect Joe Biden prepares to take office in January, employers across the nation are best advised to prepare for the likely changes coming under his administration. Biden himself made that very clear on the campaign trail when he pledged to “check the abuse of corporate power over labor” and to “hold corporate executives personally accountable for violations of labor laws.”
While significant changes through Congressional legislation over the next two years will depend on how the runoff elections in Georgia for the last two undecided U.S. senate seats turn out (both seats need to go to Democrats for Biden’s party to wrest control from the Republicans), there’s still much Biden can do through department and board appointments, as well as executive orders.
Note: This posting includes information provided by our legal counsel, JMBM.