End of Legislative Session Brings Several Changes to the California Workplace

The combination of the continuing COVID-19 pandemic and the clock running out on this year’s legislative session produced a lot of tweaks to California employment law, ranging from workers’ compensation to employee privacy protections. Some of these new laws will have a relatively small impact, while others are large changes. Many of them took effect immediately after receiving Governor Newsom’s signature, and the rest will come into force in the new year.

Effective Immediately

COVID-19 in the Workplace

SB 1159 addresses employees contracting the virus while on the job. The bill creates a rebuttable presumption that workers who tested positive for COVID-19 within 14 days of working on-site from March 19 to July 5 were infected at work. Thus, they are eligible for temporary disability and workers’ compensation coverage. The bill carries this rebuttable presumption forward from July 6 only for first responders and healthcare workers. The presumption can be rebutted with evidence the employee contracted the virus off-duty.

Employees are presumed to get infected at work (and have access to workers’ compensation benefits) if an “outbreak” is at the workplace. An outbreak is defined as: four people (or four percent of the workplace for sites that have over 100 employees) testing positive within a 2-week period or officials order the site closed due to COVID-19 exposure risk.

Finally, SB 1159 requires employers to inform their workers’ comp carrier when an employee tests positive (if they know or should have known about the positive test) within three business days.

COVID-19 Related Supplemental Paid Sick Leave

The legislature also passed AB 1867, which expands access to COVID-19 related supplemental paid sick leave. It is intended to cover employers left out of the federal supplemental paid sick leave law. Under California’s version, employers with over 500 employees nationwide, first responders, and healthcare workers who were exempted from the federal law are now covered. Unfortunately, those employers cannot take advantage of the tax credit available to employers under the federal version.

Employees of covered businesses are eligible for paid sick leave if they:

• a) are ordered by government authorities to quarantine or isolate,
• b) advised by a healthcare provider to quarantine or isolate, or
• c) prohibited from working by their employer due to COVID-19 concerns.

People working from home are not covered by the new law, and the expansion will expire when federal supplemental leave does (December 31, pending any changes at the federal level).

AB 685 lays out the employers’ responsibility to report potential exposure to the virus. Within one business day of learning of an exposure risk (ie, a worker testing positive, getting diagnosed, or ordered to quarantine), employers must inform all workers onsite with that worker at any point they were potentially infectious. Employers also must inform exposed workers of the COVID-19 related benefits available to them and inform all employees of their disinfection and safety plan. Additionally, employers must inform local health authorities if three workers test positive within a two-week span.

New Rules for Working Minors

Finally, the state passed three bills related to working minors. AB 908 makes it easier for minors to receive a work permit during COVID-19 related school closures by allowing electronic submission of required documents and waiving the minor and their parent’s physical appearance to receive a permit.

AB 3175 requires a minor’s parents/guardians to accompany the minor when they receive harassment prevention training before they can get a permit to work in the entertainment industry.

AB 3369 exempts minors who received a work permit in the last two years from the statewide harassment prevention training deadline of January 1, 2021, and instead requires they receive training every two years.

Effective January 1, 2021 – A Grab Bag of New Rules

Expanded CFRA Leave for Small Employers

The legislature transformed California’s family leave regime, covering many small businesses for the first time. SB 1383 covers all employers with five or more employees – and requires them to allow leaves of absence for employees after having a child, to deal with circumstances related to a family member’s active military duty, or to care for their parents, spouses, children, grandparents, grandchildren, and siblings. Employees are entitled to 12 weeks of unpaid leave within a 12 month period. Employees become eligible for leave after working 1,250 hours. Relatedly, the legislature passed AB 2992, which prohibits employers from retaliating or discriminating against employees who take time off to attend judicial proceedings or receive medical care after being the victim of a crime that causes physical or mental injury.

This new law will require many employers to revise their handbooks and workplace posters this year.

More Enforcement Procedures for Labor Commissioner

Two bills, SB 1384 and AB 3075, tweaked the Labor Commissioner’s ability to enforce the law. The first gives employees a year to file a complaint with the Commissioner alleging they were unlawfully discriminated against or retaliated against, as opposed to the current 6-month limit. The second bill allows the Commissioner to represent claimants who can’t afford counsel when a court orders arbitration of the claim.

Diversity in the Workplace

The legislature also passed bills seeking to increase diversity in the workplace. SB 973 requires employers with over 100 employees to submit a pay data report to the state with information about the gender and race of their workforce by March 31, 2021.

AB 979 requires publicly held corporations based in California to have at least one director on their board from an underrepresented community by the end of 2021, and at least two or three directors by 2022 depending on the size of the board. Underrepresented communities include racial/ethnic minorities and members of the LGBTQ community.

Finally, the state once again exempted employment data from its stringent data privacy rules. AB 1281 exempts employment data through the end of 2021 – but leaves in place the requirements that employers provide notice (including the categories of info collected and the purpose of collection) when collecting personal information from an applicant or employee.

Original article J.T. Keane and Robert E. Nuddleman

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The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of our practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. Mr. Nuddleman advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, helps employers and employees with disability accommodation issues and ensures employees are correctly paid wages owed.