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Flurry of Changes to California Employment Law

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

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

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.

California Mandates FMLA/CFRA Leave for Small Employers

The Federal Family Medical Leave Act (“FMLA”) and the state equivalent California Family Rights Act (“CRFA”) require employers with 50 or more employees working within a 75-mile radius to provide up to 12 weeks of unpaid time off for serious or chronic medical conditions, and to bond with newborn children. California’s New Parent Act expands the CFRA bonding leave to employees working within a 75-mile radius of 20 employees.

Governor Newsom just signed SB-1383 expanding CFRA’s medical and bonding leave to any employer with 5 or more employees. This means small employers will be required to provide up to 12 weeks of unpaid time off in the following situations:

  • (A) Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
  • (B) Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.
  • (C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.
  • (D) Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States, as specified in Section 3302.2 of the Unemployment Insurance Code.

To qualify for the leave, the employee must have been employed with the employer for at least 12-months and must have worked at least 1,250 hours during the previous year.

Employers must grant the leave and provide “a guarantee of employment in the same or a comparable position upon the termination of the leave. “ Failure to provide the guarantee of employment is the same as denying the leave.

Employers with 50 or more employees are already familiar with the requirements under FMLA and CFRA. Now small employers will need to modify their policies and provide similar leave. When FMLA/CFRA were adopted, it only applied to employers with 50 or more employers because the legislature believed requiring small employers to keep a position open for 12 weeks would create an undue burden. This is particularly true when bonding leave is combined with pregnancy leave, providing an employee almost 7 months of time off.

The time off is unpaid, but:

Any employee taking leave pursuant to subdivision (a) shall continue to be entitled to participate in employee health plans for any period during which coverage is not provided by the employer under paragraph (1), employee benefit plans, including life insurance or short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as apply to an unpaid leave taken for any purpose other than those described 

In other words, if the employer voluntarily pays all or some of the health insurance premiums for an employee, the employer must continue the health insurance payments as though the employee was working.

I expect many employers will have difficulty complying with the new requirements that take effect January 1, 2021. It also means employers with less than 50 employees will need to update their employee handbooks and policies to include the new leave entitlement.

If you have questions about what leave might be available to you or your employees, contact the Nuddleman Law Firm, P.C. We help employers navigate the difficult terrain of California and Federal leave laws, and we help employees whose employers fail to provide required leave.

Original article Robert E. Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

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.

The Times They Are A-Changin’

Last week was a bit of a whirlwind. Seven Bay Area Counties issued shelter-in-place orders. The Federal government passed two new laws as part of a larger bill providing extensive paid time off for employers with less than 500 employees. Governor Newsom issued Executive Order N-33-20 “ordering all residents are directed to immediately heed the current State public health directives.”

The Statewide stay-at-home order differs in some fairly significant ways from the county shelter-in-place orders. The same basic rule applies:

“Everyone is required to stay home except to get food, care for a relative or friend, get necessary health care, or go to an essential job. If you go out, keep at least 6 feet of distance.”

The list of “essential services” differs from the county orders. The State public health directives indicate the following essential services will remain open, such as:

  • Gas stations 
  • Pharmacies
  • Food: Grocery stores, farmers markets, food banks, convenience stores, take-out, and delivery restaurants 
  • Banks 
  • Laundromats/laundry services 
  • Essential state and local government functions will also remain open, including law enforcement and offices that provide government programs and services.

Additionally, companies “needed to maintain continuity of operation of the federal critical infrastructure sectors” are allowed to continue. Friday, March 20, 2020, the list of “Essential Critical Infrastructure Workers” was updated. I suspect this list will change over the coming days and weeks. As of today, the following are just a few of the categories of workers that are covered by my clients. This is not the complete list of workers considered part of the Critical Infrastructure. I put this list together so my clients could go to a single location and identify whether they can allow their workers to come to work.

Healthcare/Public Health Sector

  • Health care providers and caregivers (e.g., physicians, dentists, psychologists, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, speech pathologists and diagnostic and therapeutic technicians and technologists).
  • Hospital and laboratory personnel (including accounting, administrative, admitting and discharge, engineering, epidemiological, source plasma and blood donation, food service, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians, respiratory therapists, etc.).
  • Workers in other medical facilities (including Clinics, Community Mental Health, Home Health care, Hospices, Psychiatric, Residential, Rural Health Clinics, and Federally Qualified Health Centers, cannabis retailers).
  • Warehouse operators, and distributors of medical equipment, personal protective equipment (PPE), laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products.
  • Public health/community health workers,
  • Behavioral health workers (including mental and substance use disorder) responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or substance use disorder services
  • Workers that manage health plans, billing, and health information, who cannot practically work remotely.
  • Workers who conduct community-based public health functions, conducting epidemiologic surveillance, compiling, analyzing and communicating public health information, who cannot practically work remotely.
  • Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers
  • Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions, who cannot practically work remotely.
  • Workers who support food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters.
  • Workers supporting veterinary hospitals and clinics

Emergency Services Sector

  • Workers – including contracted vendors — who maintain digital systems infrastructure supporting law enforcement and emergency service operations.
  • Private security, private fire departments, and private emergency medical services personnel.
  • County workers responding to abuse and neglect of children, elders and dependent adults.

Essential Workforce – Public Works

  • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences.
  • Support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste.

Food and Agriculture

  • Workers supporting groceries, pharmacies, and other retail that sells food and beverage products, including but not limited to Grocery stores, Corner stores and convenience stores, including liquor stores that sell food, Farmers’ markets, Food banks, Farm and produce stands, Supermarkets, Similar food retail establishments, Big box stores that sell groceries and essentials
  • Restaurant carry-out and quick-serve food operations – including food preparation, carry-out and delivery food employees
  • Food manufacturer employees and their supplier employees—to include those employed in food processing (packers, meat processing, cheese plants, milk plants, produce, etc.) facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging
  • Employees and firms supporting food, feed, and beverage distribution (including curbside distribution and deliveries), including warehouse workers, vendor-managed inventory controllers, blockchain managers, distribution
  • Workers supporting cannabis retail and dietary supplement retail
  • Animal agriculture workers to include those employed in veterinary health;

Energy

  • Workers who maintain, ensure, or restore the generation, transmission, and distribution of electric power, including call centers, utility workers, reliability engineers and fleet maintenance technicians
  • Environmental remediation/monitoring technicians
  • Petroleum product storage, pipeline, marine transport, terminals, rail transport, road transport
  • Petroleum refinery facilities
  • Petroleum security operations center employees and workers who support emergency response services
  • Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them.
  • Processing, refining, and transporting natural liquids, including propane gas, for use as end-use fuels or feedstocks for chemical manufacturing
  • Propane gas storage, transmission, and distribution centers

Water and Wastewater

  • Operational staff at water authorities
  • Operational staff at community water systems
  • Operational staff at wastewater treatment facilities
  • Workers repairing water and wastewater conveyances

Transportation and Logistics

  • Employees supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain and inspect infrastructure (including those that require cross-border travel)
  • Taxis, transportation services including Transportation Network Companies, and delivery services including Delivery Network Companies
  • Maritime transportation workers – port workers, mariners, equipment operators
  • Automotive repair and maintenance facilities
  • Postal and shipping workers, to include private companies
  • Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers

Communications and Information Technology

  • Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, undersea cable landing stations, Internet Exchange Points, and manufacturers and distributors of communications equipment
  • Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables
  • Installation, maintenance and repair technicians that establish, support or repair service as needed
  • Customer service and support staff, including managed and professional services as well as remote providers of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, and troubleshooting
  • Dispatchers involved with service repair and restoration
  • Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers, data transfer solutions engineers, software and hardware engineers, and database administrators
  • Client service centers, field engineers, and other technicians supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, and information technology equipment (to include microelectronics and semiconductors) for critical infrastructure
  • Workers supporting the provision of essential global, national and local infrastructure for computing services (incl. cloud computing services), business infrastructure, web-based services, and critical manufacturing
  • Support required for continuity of services, including janitorial/cleaning personnel

Other Community-Based Government Operations and Essential Functions

  • The Courts, consistent with guidance released by the California Chief Justice
  • Security staff to maintain building access control and physical security measures
  • Weather forecasters
  • Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)
  • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects
  • Commercial Retail Stores, that supply essential sectors, including convenience stores, pet supply stores, auto supplies and repair, hardware and home improvement, and home appliance retailers
  • Workers supporting the entertainment industries, studios, and other related establishments, provided they follow covid-19 public health guidance around social distancing
  • Workers critical to operating Rental Car companies that facilitate continuity of operations for essential workforces, and other essential travel
  • Workers that provide or determine eligibility for food, shelter, in-home supportive services, child welfare, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members)
  • Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services

Financial Services

  • Workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities)

Defense Industrial Base

  • Workers who support the essential services required to meet national security commitments to the federal government and U.S. Military. These individuals, include but are not limited to, aerospace; mechanical and software engineers, manufacturing/production workers; IT support; security staff; security personnel; intelligence support, aircraft and weapon system mechanics and maintainers
  • Personnel working for companies, and their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities

Even if you are in one of the designated critical infrastructure workers or provide essential services, employers are encouraged to have employees work from home when possible. When that is not possible, employers and employees should

  • Wash hands with soap and water for at least 20 seconds
  • ·        Cover your cough or sneeze with a tissue
  • ·        Clean and disinfect frequently touched objects and surfaces
  • ·        If soap and water aren’t available, use alcohol-based hand sanitizer
  • Maintain social distance of 6 feet whenever possible

This is a highly stressful time for employees, employers and the community. The landscape changes quickly, and it can be difficult to stay on top of current rules and regulations without becoming overwhelmed. Take a deep breath. Focus on what’s in front of you.

The Nuddleman Law Firm, P.C. is open and helping clients during the shelter-in-place and stay-at-home orders. Our response time might not be as quick due to the volume of questions. I will do my best to send periodic updates and best practices to my clients. If you have questions or concerns, call me. If you get my voicemail, leave a message and I will return to your call as soon as practical.

Information provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his 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. He also 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, and helps employers and employees with disability accommodation issues.