As is the case each year, the California legislature passed a flurry of new employment laws at the end of the legislative session, many of which have been signed into law by Governor Newsom. Employers should be aware of these new laws, determine if they apply to their businesses, and take necessary steps to comply, including updates to their employee handbooks.
Leaves of Absence
Last year, California amended the California Family Rights Act (“CFRA”) to make it apply to employers with five or more employees (it previously applied to employers with 50 or more employees). This year, the legislature passed AB 1041, expanding the basis for CFRA leave. The CFRA has typically permitted employees to take leave to address their own medical needs or the needs of family members (e.g., spouse, child, grandparent, sibling, etc.) AB 1041 now permits employees to take CFRA leave to care for a “designated person,” expanding coverage for care of non-family members.
AB 1949 makes bereavement leave a protected leave of absence for employers with five or more employees. Under the law, employers may not discriminate or retaliate against employees taking bereavement leave. Additionally, AB 1949 grants employees the option of taking up to five days of bereavement leave for the death of a family member, including spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. Bereavement leave may be unpaid, but employees are permitted to supplement their bereavement leave with accrued vacation, sick, or PTO time. Employers can require employees to provide documentation supporting the leave, such as a death certificate.
Although California legalized medicinal cannabis over a decade ago and, more recently, legalized recreational cannabis, California law permitted employers to terminate or refuse to hire employees who tested positive for THC. With the passage of AB 2188, employers are prohibited from discriminating against employees or applicants for use of cannabis off the job and away from the workplace. While employers can still screen applicants for drugs, they should not include tests for non-psychoactive cannabis metabolites. Employers may still discipline employees who are under the effects of THC on the job or who use or consume cannabis in the workplace. AB 2188 does not apply to employees in building and construction trades, those being screened as part of a federal government background check, or those required to be tested under state or federal laws.
Reproductive Health Discrimination
SB 523 adds a new provision to the Fair Employment and Housing Act (“FEHA”), prohibiting discrimination based on an employee’s reproductive health decision-making. Employers, therefore, may not take adverse employment actions based on an employee’s decisions to use or access particular drugs, products, or medical services for reproductive health.
Pay Scale and Pay Reporting
The California legislature continues its push to address pay disparities for female and minority employees by passing SB 1162. Starting January 1, 2023, employers are required to include the anticipated pay scale information for the position on any job posting, including recruiter postings. Employers must also provide this information to applicants upon request. Employers with 15 or more employees are also required to provide current employees with pay scale information for the employees’ current position upon request.
SB 1162 also expands reporting requirements for employers with 100 or more employees. In additional to existing reporting requirements for employee information based on race, ethnicity and sex by job-title category, employers must also report the median and mean hourly rate within each job category, for each combination of race, ethnicity, and sex.
In late 2021, several workers at an Illinois Amazon location were killed when a tornado caused the warehouse to collapse. Employees complained that Amazon required them to remain at the warehouse despite tornado warnings in the area. More recently, Amazon suspended over fifty employees who refused to work following a fire at a New York warehouse. California passed SB 1044 in response to these types of incidents. SB 1044 prohibits employers from taking adverse employment action against employees who leave work based on a reasonable belief that the workplace is unsafe. Employers also cannot prevent employees from using mobile phones or other communication devises to contact emergency services, assess the safety of the situation, or communicate with others regarding their safety.
AB 2693 extends the expiration date for COVID-19 notice requirements from January 1, 2023, to January 1, 2024. The law also modified the notice requirements. Employers can now comply with notice requirements by posting a notice of workplace exposure in a prominent workplace location, rather than sending notice to potentially exposed employees. Notices must be posted for a minimum of 15-days and must state the date of the exposure. Employers will also no longer be required to report COVID cases to their local health departments.
Since its inception, employers have been exempted from the requirements under the California Privacy Rights Act with regard to employee information and records. The legislature, however, allowed that exemption to expire as of January 1, 2023. This means that covered employers will have new obligations for employees and applicants regarding collection of personal information, notice and disclosure requirements, and requirements to permit employees to access, correct, and delete personal information.
Fast Food Counsel
California enacted AB 257, a sweeping bill that creates a Fast-Food Counsel within the Department of Industrial Relationship. The Counsel, made up of ten members, will be tasked with setting regulations for fast food workers concerning minimum wage, working hours, and other conditions. The Counsel can set standards for fast food restaurants with 100 or more establishments nationally that share a common brand or are characterized by standardized options for décor, marketing, packaging, products, and services. The law does not apply to fast food employees working under a valid collective bargaining agreement.
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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 and advising clients on labor compliance issues.
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