Governor Newsom had a September 30, 2020 deadline to approve or veto any new laws for 2021.  Today, our team from Zaller Law hosted a webinar covering the major employment laws approved by the Governor and what these new laws mean for employers.  We will be hosting another webinar soon discussing some of the laws in more detail, so be sure to subscribe for notifications.  This Friday’s Five covers five of the new laws with the most impact on employers for the remainder of 2020 and into 2021:

1. AB 1867 – California Supplemental Paid Sick Leave

My previous article on AB 1867 is here. On Wednesday, September 9, 2020, Governor Newsom signed AB 1867 into law providing supplemental paid leave for California employees and codified provisions of Executive Order N-51-20 that had already provided paid sick leave for “food sector workers.”  California employers must take time to review the new law to ensure compliance, even if they were covered under the prior Executive Order. The new law created obligations for employers to provide COVID-19 Supplemental Paid Sick Leave to non-food sector employees starting no later than September 19, 2020.

2. SB 1159 – Workers’ Compensation: COVID-19

  • Effective immediately! (Automatically repealed January 1, 2023)
  • Codifies Governor’s May 6, 2020, Executive Order N-62-20.
  • Applicable to employees who test positive during an “outbreak” at the employee’s “specific place of employment.”
  • Applicable to employers with five or more employees
  • Applies to all dates of injury on or after July 6, 2020
  • Employee may be awarded: Full hospital, surgical, and medical treatment; disability indemnity (only after exhausting any COVID-specific paid sick leave); and death benefits

Key Terms:

  • “Specific place of employment”: Building, store, facility, or agricultural field where an employee performs work at the employer’s direction. Does not include employee’s home.
  • “Outbreak”: Measured over 14 days at a specific place of employment
    • If 100 or fewer employees, four employees test positive .
    • If more than 100 employees, four percent of employees test positive.
    • If a public health department or OSHA orders SPE closed due to risk of infection with COVID-19.
  • “Test”: PCR Test or viral culture test of same or higher sensitivity/specificity. Does not include serological (antibody) test.

Presumption:

  • Employee’s COVID-19 illness or death is presumed to arise out of and in the course of the employment if employee tests positive within 14 days of performing labor or services at the place of employment.
  • Key limitation: during an outbreak.
  • Can be rebutted with evidence of employer safety measures and employee’s nonoccupational risks.

Employer Reporting Requirements:

  • Employer must report positive tests to claims administrator by email or fax within three business days, including:
  • Date of positive test (collection date)
  • Address of employee’s specific place of employment
  • Highest number of employees at SPE in 45-day preceding last day worked
  • Do not identify employee unless employee asserts work-related infection
  • Duty to report arises if employer knew or should have known of positive tests
  • Civil penalty up to $10,000 or failing to report information or intentionally submitting false or misleading information
  • Employers have until October 19 to report any positive tests occurring between July 6, 2020, and September 16, 2020

3. SB 1383 – California Family Leave Rights Act (CFRA) Expansion

  • Effective January 1, 2021
  • SB 1383 significantly expands CFRA, by extending its applicability to employers with 5 or more employees, compared to 50 or more employees currently.
  • The new law expands the family members whom an employee can take leave to include care of grandparents, grandchildren, siblings, domestic partners with a serious health condition, in addition to existing leave to care for a parent or spouse.
  • This law will have a monumental impact on small employers and will impact large employers who are already subject to CFRA.

Major Changes In The New CFRA Provisions Include:

  1. Changes the threshold requirement to employers with 5 or more employees across the entire State.
  2. Expands the definition of family member to include care for an adult child over 18 years of age, the child of a domestic partner and a grandparent, grandchild and sibling.
  3. Requires an employer of both parents of a child to grant up to 12 weeks of leave for each parent for birth, adoption, or foster care placement of a child.
  4. Eliminates the “key employee” provision under the current CFRA provisions.

Eligibility for CFRA Leave:

Employee must have worked for the employer for at least 12 months and worked at least 1,250 hours in the 12-month period prior to taking CFRA leave.

Amount of Leave:

Up to 12 weeks of unpaid leave in each 12-month period. Leave can be used in increments. This 12-week leave is in addition to other leaves mandated under California law, like Pregnancy Disability Leave, Workers Compensation, and California Paid Leave.

What The New CFRA Leave Requires:

  • The unpaid leave can be taken because of the employee’s own serious health condition, or to care for specified family members medical conditions or to care for a child.
  • The employee shall continue to receive health insurance benefits at the same level as if the employee had been continuously employed during the CFRA leave.
  • Employers must reinstate an employee on leave to the same job or comparable job to the extent that the employee would have remained in that position if they had been continuously employed during the CFRA leave.

Impacts Larger Employers Covered Under the Current Law:

  • Additional covered family members and expanded reasons for leave.
  • Threshold requirements of employing 50 or more employees within a 75-mile radius is stricken, so that larger employers with small worksites will be required to grant CFRA leave.
  • In some cases, CFRA may no longer be concurrent with leave taken under the FMLA, so there is the potential the employee qualifies for leave under both state and federal law.

4. AB 1947 – Employment Violation Complaints

  • Existing law prohibits discrimination or retaliation against employees who complains about labor code violations or other violations of law.
  • AB 1947 amends existing law to provide a longer time for employees to report complaints to DLSE extended from 6 months to one year.
  • Allows employee to recover attorney’s fees in court action alleging retaliation.

5. SB 973 – Employers Annual Report Pay Data

  • On or before March 31, 2021, and on or before March 31 each subsequent year, private employers with 100 or more employees and who are required to file an annual Employer Information Report (EEO-1) under federal law, must submit pay data report to the Department of Fair Employment and Housing (DFEH).
  • Reinstates by CA collection of “Component 2”-type pay data by race and gender that was halted on the federal level in the EEO-1.
  • Information required to be reported includes:
    1. number of employees by race, ethnicity, and sex across 10 categories of jobs,
    2. the number of employees by race, ethnicity, and sex whose annual earning fall within each of the pay bands used by the US Bureau of Labor Statistics in the Occupational Employment Statistics survey.