2021 California New Employment Law

As of January 1st, 2021, new laws and the expansion of the California Family Rights Act have gone into effect. Here is a summary of some of the new laws your business needs to know about.

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SB 1383 – Expansion of California Family Rights Act

Under the former California Family Rights Act, employers with 50 employees or more must provide certain employees with protected leave rights. These employees are those who:

  • Have worked at least 1,250 hours in the last 12 months
  • Have at least one year of service
  • Are employed at a worksite with 50 or more employees in a 75-mile radius.

The expansion of the CFRA means this now applies to all employers with more than five employees, regardless of their distance. It also applies if the employer has only one employee who works in California.

The protected leave includes up to 12 weeks of unpaid leave for:

  • A serious health condition. Pregnancy is covered under the Pregnancy Disability Leave.
  • To care for a family member with a serious health condition.
  • To bond with a new child within 12 months of their adoption, birth, or foster placement. If both parents work for the same employer, they can both take 12 weeks each of unpaid CFRA leave to care for their new child. There is no longer any “key employee” exception to this Act.
  • Qualifying emergencies related to a covered active duty in the US Armed Forces of a domestic partner, spouse, parent, or child.

Another change the CFRA made was that family members now include siblings, grandchildren, and grandparents alongside the existing definition of parents, spouses, domestic partners, and children.

With the expansion of these definitions, it is possible that an employee may qualify for CFRA leave they would not receive under the FMLA. The employee may then also qualify for FMLA leave for a different reason.

All employers with employees in California must review their existing leave policies to ensure they comply with the CFRA amendments.

AB 685 – COVID Exposure Notification

Employers now have new obligations for reporting COVID-19 exposure. Section 6409.6 has been added, requiring employers to provide written notice to all employees, employee representatives, and subcontractors’ employees who were at the same worksite as the “qualifying individual.”

A qualifying individual is defined as someone who:

  • Has received a positive test result for Covid-19.
  • Was diagnosed with coronavirus by a licensed health care provider
  • Has died because of Covid-19
  • Has been ordered by a public health official to isolate due to Covid-19.

If the qualifying individual has been at a worksite during their infectious period, the employer must notify employees of the potential exposure in writing within 24 hours. The notice must be given both in English and any other languages the majority of the workforce understands. The written notice may be communicated via text message, email, or memorandum. It must include information about the federal, state, and local law benefits for employees and the CDC mandated disinfection and safety plans the employer will implement. Employers cannot reveal the qualifying individual’s name, nor can they retaliate against them for disclosing their status. Employers must keep a copy of the notification and any related records for at least three years.

If the employer has a number of cases in their workforce and meets the guidelines for an outbreak, they must notify the local public health agency. They must provide the public health agency with the following information for each qualifying individual:

  • Names
  • Contact number
  • Occupation
  • Worksite

Health facilities are exempt from reporting this information.

Labor Code Section 6432 now includes subsection h, which allows Cal/OSHA to issue a Covid-19 related citation without having to give the employer a form with the reasons they believe there was a serious violation. This means that if there is an “imminent hazard” and a number of employees were exposed to coronavirus, Cal/OSHA has the discretion to immediately shut down a worksite.

The Labor Code’s Covid-19-specific changes will be in effect from January 1, 2021 until January 1, 2023. We advise employers to take the following steps to ensure they are prepared for the notice requirements:

  • Create a Covid-19 notice template
  • List all of the employees, unions and subcontractors at each worksite
  • Create a disinfection and safety plan to be implemented if a case occurs
  • Train your managers and supervisors on the new requirements and create checklists

This advanced preparation will ensure employers can meet the 24 hour notice period.

SB 1159 – Workers’ Compensation

SB 1159 went into immediate effect when it was passed in September 2020. It adds Covid-19-related illness and death to the workers’ compensation definition of injury. The rebuttal presumption SB 1159 provides only applies if the employee contracted coronavirus during an “outbreak” in the workplace. The employee must also prove that they were at the workplace during the time where they may have contracted the virus.

The employer has 45 days from the claim date to submit evidence to refute the rebuttal presumption. Evidence includes proof that the employee may have contracted Covid-19 elsewhere or proof that the employer tried to reduce the transmission of Covid-19 in the workplace.

SB 1159 also requires employers to report to their claims administrator if they know or suspect that an employee has tested positive for coronavirus. They must report the following information:

  • The address of all worksites the employee attended within the 14 day period prior to their positive test results.
  • The date the employee received the positive test results.
  • The number of employees who attended that worksite during the past 45 days.

Unless the employee has already filed a workers’ compensation claim, the employer must not provide the name of the employee who tested positive in the notice.

If an employer fails to report a positive Covid-19 test to their claims administrator, they may face a fine of up to $10,000. SB 1159 will be in effect until January 1, 2023.

AB 1867 – Small Employer Family Leave Mediation Program

AB 1867 provides a mediation program for small employers facing family care leave claims. This is a pilot program for the DFEH which tackles claims filed against employers with between 5 and 19 employees. The mediation may be requested by either the employer or the employee; however, the employer may not take their claim to court until they have completed mediation. This program will be in effect until January 1, 2024.

AB 2257 Worker Classification

The AB 5 law stated that the ABC test must be used to classify workers as employees or independent contractors, and it would be the test to determine a worker’s classification in any court proceedings. This ABC test would determine if a worker was eligible for benefits such as workers’ compensation and unemployment insurance.

Under AB 5, some occupations are exempt and therefore continue to use the Borello test which has more relaxed criteria for worker classification.

AB 2257 was passed in September 2020 and went into immediate effect. It has expanded the list of occupations which are exempt from using the ABC test to classify workers. It also allows B2B services provided as per a contract to be classified as independent contractors under the ABC test.

Some of the occupations AB 2257 exempts from the ABC test are:

  • Registered professional foresters
  • Licensed landscape architect
  • Home inspectors and real estate appraisers
  • Expert performers teaching masterclasses
  • Feedback aggregators

Employers are encouraged to seek legal advice to determine if any of AB 2257’s exemptions apply to their business.

SB 973 – Equal Pay Reporting

Businesses who are larger than 100 employees and are required by federal law to file an EEO-1 must also submit a pay data report to the DFEH. This report must be submitted on March 31st every year, starting in 2021 and will provide data for the previous calendar year.

The report must be provided in a format that allows sorting and search functions. It must provide the following information:

  • How many employees of each sex, ethnicity, and race in the following roles: Senior or Executive Managers and Officials, Mid-Level or First Managers and Officials, Technicians, Professionals, Sales Workers, Craft Workers, Administrative Support Workers, Laborers and Helpers, Operatives, and Service Workers. Employers may count how many workers they have in each category in any single pay period between October 1 and December 31 the previous year.
  • How many employees fall into each of the BLS’s Occupational Employment Statistic Survey’s pay bands and the total number of hours worked by each employee. The calculations are to be made with each employee’s W-2 income and sorted by sex, race, and ethnicity.

AB 1947 – Labor Code Changes

Amendments have been made to section 98.7 of the Labor Code, extending the deadline for filing DLSE discrimination and retaliation claims to one year, previously six months. Claims made under Labor Code section 102.5 now can recover attorney’s fees.

Final Words

This article covers the new laws which are likely to impact employers the most, but there were a number of California employment laws passed in the last six months. California employers must consult with expert employment attorneys to ensure their policies and practices comply with the new and amended laws.