Getting Ready for 2021: New California Employment Laws
October 28, 2020
COVID-19 Related Bills
COVID-19 Workers’ Compensation Coverage: Effective immediately upon signing on September 17, 2020 is SB 1159, which establishes a “disputable presumption” that employees who suffer illness or death due to COVID-19 contracted the virus on the job and thus it is compensable through the employers’ workers compensation insurance. The bill also requires employers to inform their workers’ compensation insurance administrator in writing within 3 business days of learning an employee tested positive the following information: 1) that an employee has tested positive (but an employer only provides the employee’s name if the employee claims he/she contracted COVID-19 while at work and/or submitted a workers' compensation claim form), 2) the date that the employee tested positive (based on the date the specimen was collected for testing), 3) the address of where the employee worked during the 14-day period immediately preceding the date of the positive test, and 4) the highest number of employees who reported to work at the address of where the positive-employee worked in the 45-day preceding period. This law applies to employers with 5 or more employees and remains in effect until January 1, 2023.
COVID-19 Mandated Reporting: AB 685 requires employers to immediately act – within one business day – upon receiving notice of potential exposure to COVID-19 in the workplace. Employers must provide written notice to all employees, the employers of subcontracted employees and employees’ representatives (i.e. unions) regarding: 1) possible exposure, 2) available COVID-related benefits (i.e. paid sick leave) and 3) the employers’ disinfection protocols and safety plan to eliminate further exposures. AB 685 also mandates that employers notify their local public health department if a COVID-19 “outbreak” occurs at the workplace and expands Cal/OSHA’s authority to issue Stop Work Orders for workplace that pose a risk of an “imminent hazard” relating to COVID-19. AB 685 takes effect January 1, 2021.
Paid Sick Leave Requirements for Large Employers: Effective immediately upon signing on September 9, 2020 is AB 1867, which states that the paid sick leave and expanded paid family leave benefits provided under the federal Families First Coronavirus Response Act (“FFCRA”) is applicable to large California employers with 500 or more employees. That law expires on the same date as when FFCRA expires - December 31, 2020.
Leave of Absences Related Bills
Expansion of California Family Rights Act (“CFRA”) to Small Businesses: SB 1383 significantly expands applicability of family and medical leave entitlements to employees under CFRA; California employers with 5 or more employees must allow employees to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child or to care for themselves or a family member due to a serious health condition. SB 1383 takes effect January 1, 2021. To learn more about this bill, please visit this previous post by Shivani Sutaria Law Offices.
Protected Time Off for Victims of Crime: AB 2992 expands existing law to provide protected leave to employees who are victims of crimes or abuses “that caused physical injury or that caused mental injury and a threat of physical injury” and “whose immediate family member is deceased as the direct result of the crime” for the purpose of attending judicial proceedings or seeking medical attention. Existing law mandated protected leave for employees who were victims of domestic violence, sexual assault, or stalking for these same purposes. AB 2992 takes effect January 1, 2021.
Employees to Designate Kin Care: Under existing law, employees can use half their paid sick leave to care for a family member (a.k.a. Kin Care). AB 2017 clarifies that employees - and not employers - have the sole discretion to designate days taken off under California’s paid sick leave law as Kin Care. AB 2017 takes effect January 1, 2021.
Discrimination/EEO Related Bills
Small Business Family Leave Mediation Pilot Program: AB 1867 (discussed above) also establishes a family leave mediation pilot program through the Department of Fair Employment and Housing (“DFEH”) for small employers with 5 to 19 employees. Employers and employees can request mediation through the DFEH’s dispute resolution division if the DFEH issues a right-to-sue notice based on a DFEH discrimination or harassment complaint that is related to family leave. The bill prohibits employees from filing civil actions until the mediation is complete and tolls the statute of limitations until the mediation is complete. AB 1867 takes effect January 1, 2021.
Reporting Pay Data to California: SB 973 requires private employers with a 100 or more employees who already file an annual Employer Information Report (EEO-1) under federal law to now submit pay data based on employees’ race, ethnicity and gender in various job categories to the DFEH. Employers must submit this data by March 31, 2021 and by March 31 each year thereafter.
Diversifying Boards of Directors: SB 979 requires publicly held corporations headquartered in California to diversify their boards of directors with individuals from “underrepresented communities,” which is defined as those who self-identify as “Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native.. or as gay, lesbian, bisexual, or transgender.” By December 31, 2021, publicly held corporations must have at least one director from an underrepresented community. By December 31, 2022, publicly held corporations that have between five and eight directors must have at least two directors from underrepresented communities and those with nine or more directors must have at least three directors from underrepresented communities. Non-compliance can result in fines between $100,000 to $300,000. This bill is similar to SB 826 from 2018 which required publicly held corporations headquartered in California to include women on their boards of directors.
Independent Contractor Related Bill
Modifications to California’s Independent Contractor Law: AB 2257 – which follows AB 5 – went into immediate effective on September 4, 2020. AB 5, which became California law on January 1, 2020, statutorily required California employers to use a new test - the ABC test - to determine whether a worker was an employee or an independent contractor. AB 5 exempted numerous professions from the “ABC” test, instead allowing the classification determination of workers in those professions to be based on other factors and/or the prior independent contractor test (Borello test). AB 2257 modified and/or expanded some exemptions plus added more. For example, AB 2257 expanded the business to business exemption to allow for relationships between two sole proprietors, removed the maximum submission limit from the journalist and photography exemption, and carved out further exemptions for certain professions such as those in the music and performing arts industry, youth sports coaching, wedding and event planning, interpreting services, copy editing, illustrating, specialized performers teaching master classes, insurance underwriting, appraising, dog walking and grooming, pool cleaning, certain jobs in international exchange visitor programs, and competition judging.