California Employment Law Update 2021
Posted by GibbsGiden Under California Law
Several new employment laws are going into effect in California on January 1, 2021. These new laws expand coverage of the California Family Rights Act (“CFRA”) and establish employer obligations in response to COVID-19 outbreaks.
SB 1383 Expands Coverage of the CFRA
SB 1383 is an expansion of the CFRA. The most sweeping change to the CFRA in SB 1383 is the expansion to small businesses. The CFRA currently guarantees unpaid leave to employees if the employer has 50 or more employees within a 75-mile radius. SB 1383 will guarantee leave to employees if the employer has 5 or more employees within a 75-mile radius. SB 1383 also expands the reasons an employer qualifies for leave. Employees currently qualify for leave in order to care for a spouse, domestic partner, minor child, or parent with a serious health condition. SB 1383 expands qualified leave to care for adult children, grandparents, grandchildren, or siblings with serious health conditions.
AB 685 Lays Out Employer Obligations for COVID-19 Outbreaks
AB 685 establishes guidelines that employers must follow if employees are diagnosed with COVID-19. In the event of a potential workplace exposure, employers must provide, within one business day: (a) written notice to all employees and independent contractors who were at the worksite within the infectious period; (b) written notice to representatives, such as unions, who represent employees; (c) written notice to employees regarding COVID-19 related benefits, including workers’ compensation benefits, COVID-19 related leave, paid sick leave, and company policies related to anti-discrimination, harassment, and retaliation; and (d) notice to employees regarding the company’s disinfectant protocols and safety plans to prevent future exposures.
AB 2257 Continues to Modify the Independent Contractor Test
In 2020, California enacted AB 5, creating the ABC Test for independent contractors in many professions. AB 5 made it more difficult to classify workers as independent contractors. AB 2257 expands or clarifies some of the exceptions to the ABC Test. One of the most significant changes is to the “business-to-business” exception, clarifying ambiguous language that a contractor business must only have the opportunity to contract with other businesses. AB 2257 also creates a “single-engagement” business-to-business exception for serviced rendered for a single-engagement event. AB 2257 also adds a significant number of new types of jobs to the “professional services” exception to the ABC Test. It is important to remember that, even if a job falls within the exceptions carved out in AB 5 or AB 2257, the traditional Borello factors would still be used to determine if a worker is properly classified as an independent contractor. The Borello factors are more independent-contractor friendly, but a worker may still be deemed to be an employee under that test.
SB 1159 Codified Worker’s Compensation Coverage for COVID-19
In May, Governor Newsome signed two executive orders concerning worker’s compensation claims for workers contracting COVID-19. SB 1159 codifies these executive orders, establishing a rebuttable presumption that an employee who contracts COVID-19 and is working at the employer’s worksite contracted the virus at work, and therefore is entitled to workers’ compensation benefits. An employer wishing to challenge a claim must overcome this presumption by, for instance, highlighting the employee’s risk outside of the workplace or demonstrating its virus reduction measures. Employers are on a strict timeframe to dispute the workers’ compensation claim within 30 or 45 days, depending on the type of employment and the date of the claim.
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Matthew Wallin is a senior associate in the Los Angeles office where he practices labor and employment law. He has extensive experience defending private business and public entities in litigation involving discrimination, harassment, retaliation, and wage and hour disputes. He has also defendant against assault and workplace violence claims.
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