Like so much else in 2020, this year’s legislative session was headlined by COVID-19. As the pandemic continues to upend traditional employment practices, California has adopted a series of new and updated laws responding to the novel issues it now faces. These laws – and others – will impact how employers in California conduct business. Below, we summarize several important new laws. Please contact one of our employment lawyers should you find yourself needing further guidance on these issues.
1. Codified COVID-19 Presumption (SB 1159)
SB 1159 codifies Executive Order N-62-20, establishing a rebuttable presumption that certain employees who test positive for COVID-19 contracted the virus at work and are therefore eligible for workers’ compensation benefits. The burden to show that COVID-19 was contracted outside of work is on the employer if (1) an employee tests positive during an “outbreak” and (2) the employer has five or more employees. SB 1159 also requires an employer to report to its claims administrator within three business days if the employer “knows or reasonably should know that an employee has tested positive.” This law went into effect September 17, 2020, and the rebuttable presumption will exist through January 1, 2023.
2. Expanded COVID-19 Supplemental Sick Leave (AB 1867)
AB 1867 expands supplemental paid sick leave for COVID-19 related reasons. The federal Families First Coronavirus Response Act (“FFCRA”) providing paid leave for specified COVID-19-related reasons applies to certain public employers, and private employers with fewer than 500 employees. Now, pursuant to AB 1867, private employers with 500 or more employees in the United States must also provide California employees with paid sick time. AB 1867 also codifies Executive Order N-51-20, providing supplemental sick leave to food sector workers, and closes gaps left open by the FFCRA, extending coverage to all employers of healthcare providers or emergency responders, including public entities and irrespective of the number of employees. This law went into effect September 9, 2020 and expires upon December 31, 2020 or upon the expiration of any FFCRA extension, whichever is later.
3. New COVID-19 Reporting Requirements (AB 685)
AB 685 imposes new reporting requirements on employers regarding COVID-19 cases in the workplace and also grants California’s Division of Occupational Safety and Health (“Cal-OSHA”) expanded enforcement authority to close workplaces and issue citations. Employers who receive notice of potential exposure to COVID-19 must provide written notice to employees within one day and, in the event of an “outbreak,” written notice to the local public health agency within two days. This law takes effect January 1, 2021 and is set to expire January 1, 2023.
4. Expanded Medical Leave Protection (SB 1383)
SB 1383 significantly expands the California Family Rights Act (“CFRA”) and federal Family and Medical Leave Act (“FMLA”). Under the CFRA and FMLA, employers of fifty or more employees are required to provide up to twelve weeks of medical leave per year. Now, under SB 1383, the same medical leave requirement applies to employers of five or more employees. SB 1383 also broadens CFRA leave to care for a “family member” to include grandparents, grandchildren, and siblings (in addition to the existing coverage of parents, children, spouses, or registered domestic partners). Employers should be aware that in certain instances where SB 1383, CFRA, and FMLA do not run concurrently, a qualified employee may be able to receive a total of twenty-four weeks of protected leave in one year. This law takes effect January 1, 2021.
5. PPE Requirements for Healthcare Employers (AB 2537)
AB 2537 requires public and private employers operating general acute care hospitals to supply certain employees with PPE, maintain a three-month stockpile of PPE beginning April 1, 2021, and report inventory information to Cal-OSHA upon request. Employers will be subject to a civil penalty of up to $25,000 for each violation under AB 2537. This law takes effect January 1, 2021.
6. Greater Protections for Employee Victims of Crime or Abuse (AB 2992)
AB 2992 provides greater protection for employees who are a victim of crime or abuse. Previously, all employers were required to provide time off for jury duty, and employers of twenty-five or more employees were required to allow time off for an employee who was a victim of domestic violence, sexual assault, or stalking to seek medical attention or related services. AB 2992 expands protections to an employee who was a victim of a crime, abuse, or public offense which caused a physical or mental injury or threat of physical injury. It also revises the categories of time off to include: obtaining services from prescribed entities, obtaining psychological counseling or mental health services, participating in safety planning, and taking other actions to increase safety from future crimes or abuse. This law takes effect January 1, 2021.
7. Employee’s Right to Designate “Kin Care” (AB 2017)
AB 2017 updates existing law, clarifying that the decision whether or not to designate up to half of their accrued sick leave as “kin care” is at the employee’s sole discretion. The clarification helps avoid designation errors and unintentional drawdowns of “kin care” time when sick leave was actually taken for personal reasons. This law takes effect January 1, 2021.
8. New Exceptions to Independent Contractor “ABC Test” (AB 2257)
While AB 2257 maintains the framework of AB 5’s “ABC Test” to determine whether a worker is an employee or independent contractor, it modifies existing exceptions and adds new ones. The new exceptions provide shelter to many professionals in certain situations who were traditionally considered independent contractors, but who would likely fail under the ABC Test and be considered employees – including business servicers, referral agents, numerous art professionals, and licensed professionals such as lawyers, doctors, securities brokers, accountants, engineers, and architects. This law went into effect September 4, 2020.
9. Extended Statute of Limitations for Discrimination and Retaliation Suits (AB 1947)
AB 1947 extends the time an employee can file a complaint of discrimination or retaliation with the California Division of Labor standards Enforcement (“DLSE”) from six months to one year. This law takes effect January 1, 2021.
10. New Pay Data Reporting Requirements (SB 973)
SB 973 requires private employers who have 100 or more employees and who are already required to file an annual EEO-1 under federal law to submit an annual pay data report to the California Department of Fair Employment and Housing (“DFEH”) on or before March 31, 2021. The report must contain information about employees’ race, ethnicity, and gender in various job categories – essentially creating a California version of the federal EEO-1 that some employers must submit to the Equal Employment Opportunity Commission (“EEOC”). SB 973 also provides the DFEH with enforcement authority to compel compliance and recover associated costs. This law takes effect on January 1, 2021.
11. Extended Employer CCPA Exemption (AB 1281)
AB 1281 extends employers’ California Consumer Privacy Act (“CCPA”) exemption to collect employee data through January 1, 2022. The exemption, first established by AB 25, allows businesses to collect and use a person’s information for employment purposes. However, businesses must still comply with the CCPA’s requirement to provide notice before, or at the time of, collecting personal information, describing every category of information that will be collected and the purposes for which it will be used. This law takes effect January 1, 2021.
This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.