California: Get Ready for Legislative Updates in 2023!
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At the end of September, Governor Newsom signed a slew of bills, many of which will impact employers in 2023. Here is a summary of key bills employers should be aware of. (Note a few additional bills are discussed in separate articles posted on this date.)
AB 1041 | JAN 1, 2023. Leave for Care of Designated Person. AB 1041 amends the California Family Rights Act (CFRA) and state Paid Sick Leave law (PSL) by adding “designated person” to the list of individuals for whom employees can take job-protected leave, which currently includes when caring for a child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner. A “designated person” is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship. The employee may identify the designated person at the time leave is requested. Employers do have the right to limit an employee to one designated person per 12-month period.
AB 1601 | JAN 1, 2023. Relocation of Call Centers. AB 1601 amends California’s Worker Adjustment and Retraining Act (Cal/WARN) to add notice requirements for mass layoffs, relocations, or terminations affecting call center employees. A call center is a facility or other operation where employees, as their primary function, receive telephone calls or other electronic communication for the purpose of providing customer service or other related functions. A call center employer that has employed 75 or more persons within the preceding 12 months is specifically prohibited from ordering a relocation of its call center or one or more of its facilities or operating units within a call center constituting 30% of its workforce unless notice of the relocation is provided at least 60 days prior to the relocation to the affected employees and to the Employment Development Department (EDD), local workforce investment board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs. This includes when the employer intends to move its call center to a foreign country. The EDD will compile and publish on its website a list of call center employers that provided notice. Those who do not provide notice are ineligible for state grants or state-guaranteed loans and will also be ineligible to claim a tax credit for five taxable years beginning on and after the date the list is published. Employers operating covered call centers should consult with legal counsel before mass layoffs, terminations, or relocations to be sure they comply with the new Cal/WARN requirements.
AB 1751 | JAN 1, 2023. Workers’ Compensation and COVID-19. AB 1751 extends the rebuttable presumption that an employee’s illness or death related to COVID-19 is an occupational injury and eligible for workers’ compensation benefits. The extension is until January 1, 2024. This bill also extends an employer’s reporting requirements to provide information about COVID-19 cases to their workers’ compensation claims administrator. Additional state employees for the State Department of State Hospitals, the State Department of Developmental Services, the Military Department, and the Department of Veterans Affairs are also now covered.
AB 1949 | JAN 1, 2023. Mandatory Bereavement Leave. AB 1949 amends the California Family Rights Act to provide mandatory bereavement leave which could be paid leave subject to the employer’s other leave policies. Eligible employees may take up to 5 days’ bereavement leave within 3 months of the date of death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. It is an unlawful employment practice for an employer to discriminate, interfere, or retaliate against an employee who exercised their rights under the bill. Employers may request documentation but must also maintain confidentiality relating to the bereavement leave. If an employer has an existing paid bereavement leave policy, leave would be taken pursuant to that policy. Employees may use other leave balances available from the employer like paid sick leave. If the employer does not have equivalent paid leave policies, then the bereavement leave would be unpaid.
AB 2089 | JAN 1, 2023. Privacy and Mental Health Digital Services. AB 2089 amends the Confidentiality of Medical Information Act (CMIA) to include mental health application information under the definition of medical information. It also includes mobile-based applications or internet websites that collect mental health application information from a consumer, markets itself as facilitating mental health services to a consumer, and uses the information to facilitate mental health services to a consumer. Any business that provides such mental health digital services is a provider of health care subject to the requirements of the CMIA. These businesses, when partnering with a provider of health care, must now provide the health care provider with information regarding how to find data breaches reported on the website of the Attorney General.
AB 2188 | JAN 1, 2024. Off-the-Job Marijuana Protections. AB 2188 will amend California’s Fair Employment and Housing Act (FEHA) to prohibit discrimination based on a person’s use of marijuana outside of the workplace or a drug screen test positive for nonpsychoactive cannabis metabolites (i.e., THC after the body processes it). Specifically, metabolites do not indicate actual impairment; however, testing options to determine actual marijuana impairment are still not ideal. With the year delay, there is hope that marijuana testing capabilities will catch up by the time the bill goes into effect. The bill’s protections do not extend to employees in the building and construction trades, job positions subject to federal background check requirements, or when otherwise required for federal funding or federal contracts. Employers may still prohibit employees from possessing, using, or being impaired by marijuana while on the job.
AB 2693 | JAN 1, 2023. Extension of AB 685 COVID-19 Requirements. AB 2693 extends AB 685 employer COVID-19 notice requirements until January 1, 2024, and allows employers to post a notice in the workplace for COVID-19 exposure instead of providing individual notice. Specifically, a notice must be posted for 15 days when there has been a COVID-19 workplace exposure, and a record must be kept of the posted notice. Employers have the option to still provide individual exposure notices. However, written notice for close contacts is still required. This bill may be further impacted by Cal/OSHA’s expected permanent COVID-19 regulations currently under consideration.
AB 2777 | JAN 1, 2023. Sexual Assault Claims Extended. AB 2777, the “Sexual Abuse and Cover Up Accountability Act,” in part, revives otherwise time-barred sexual assault claims, including those that were the basis of wrongful termination or sexual harassment claims, through December 31, 2023 if the plaintiff alleges (1) they were sexually assaulted; (2) an entity is legally responsible for damages from the sexual assault (e.g., through negligence, intentional tort, vicarious liability); and (3) the entity (including its officers, directors, representatives, employees, or agents) engaged in an actual or attempted cover up of a previous allegation of sexual assault. “Cover up” may include using nondisclosure of confidentiality agreements to incentivize individuals to remain silent or prevent disclosure to the plaintiff. The bill does not cover claims that have been litigated to finality or resolved through a written settlement.
SB 523 | JAN 1, 2023. Reproductive Health Protections. SB 523 protects individuals from discrimination based on reproductive health decision-making. “Reproductive health decisionmaking” includes, but is not limited to, a decision to use or access a particular drug, device, product, or medical service for reproductive health. Additionally, as of January 1, 2024, health benefit plans will be required to include coverage for contraceptives, vasectomies, and related services.
SB 951 | JAN 1, 2023. Expanded Paid Family Leave Benefits. Starting in 2025, SB 951 will expand state paid family leave benefits to 90% wage replacement for workers making up to 70% of the statewide average weekly wage. Additionally, the current 60% to 70% rates will continue through the end of 2024, rather than reverting to 55% in 2023 as was expected. The qualifying criteria for receiving paid family leave has not changed. To account for increased benefit payouts, the cap on payroll tax contributions is eliminated so that higher-income workers will continue to contribute to the program.
SB 1044 | JAN 1, 2023. Protections for Emergency Conditions. In the event of an “emergency condition,” SB 1044 prohibits employers from taking or threatening to take adverse action against an employee who leaves or refuses to report to a workplace because of a “reasonable belief” that the workplace is unsafe (i.e., there is a real danger of death or serious injury). Additionally, employers may not prevent an employee from accessing their own mobile device or other communications to seek emergency assistance, assess the safety of the situation, or to verify their safety with others. “Emergency condition” includes (1) a disaster or extreme peril at the workplace caused by natural forces or a criminal act, or (2) an order to evaluate a workplace, home, or school of a worker’s child due to a natural disaster or criminal act. It does not include a health pandemic. Employees must notify the employer of the emergency condition prior to leaving or refusing to report if feasible, or otherwise as soon as possible. The protections end when the emergency conditions no longer pose imminent and ongoing harm to the workplace, worker, or worker’s home. There is a long list of exclusions for different types of workers, such as first responders, disaster service workers, certain health care facilities, licensed residential care facilities, and other defense, critical and emergency services.
- Have policies and procedures updated.
- Have payroll processes updated.
- Have COVID-19 notices updated, as applicable.
- Prepare to have drug testing procedures updated.
- Have appropriate personnel trained on the new requirements.
- Have discrimination training updated to include new protections.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase