Key Takeaways for California’s New 2021 Employment Laws

2021 brings a slew of new employment laws, which will affect nearly every California employer, regardless of size or industry. Below is a roundup of the main legal changes that will impact most employers. Some of these laws took effect immediately upon the governor’s signing on September 30th, and most others will go into effect on January 1, 2021. Given the expansive scope of these laws, employers should have their policies and procedures updated and in place ready to go by January 1, 2021.

Family and Medical Leave Expanded for Nearly All Employers

SB 1383 significantly expands the California Family Rights Act (CFRA). The expanded CFRA requires employers with five or more employees to provide up to 12 weeks of unpaid leave for an employee for family care and medical leave purposes. The law also provides 12 weeks of unpaid leave for 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.

The current CFRA (modeled largely after the federal Family and Medical Leave Act) applies to employers with 50 or more employees within 75 miles of the worksite. In addition to lowering the employee threshold to just five employees, SB 1383 eliminates the requirement that employees work within 75 miles of the worksite.

SB 1383 also expands the definition of “family members” beyond what is covered under the current CFRA and FMLA. The list of family members is expanded to include siblings, grandparents, and grandchildren, along with currently covered parents, spouses, domestic partners and children. The definition of “child” is expanded to cover adult children (regardless of whether they are dependent) and children of a domestic partner.

The law eliminates a current requirement that specifies that if both parents work for the same employer, the employer is not required to provide more than a total of 12 weeks for leave in connection with the birth, adoption or foster care placement of a child. As a result, employers will have to provide up to 12 weeks of leave for each parent.

SB 1383 also eliminates the current CFRA’s carveout for certain highly paid or key employees.

The expanded law will pose additional burdens for employers with 50 or more employees who are covered under both the CFRA and the FMLA. Typically, such employers have one policy on family and medical leave that covers leave under the CFRA and FMLA. And in most instances, leave under the current CFRA and FMLA run concurrently, making it easy to track the amount of leave taken. That will no longer be the case under the updated law given the expanded definition of “family member,” and the elimination of the requirement that an employee work within 75 miles of a workplace with 50 or more employees to qualify.

Finally, the law eliminates the New Parent Leave Act, which took effect in 2018, and which provides leave for baby bonding purposes. That law applied to employers with 20 or more, but less than 50 employees. Baby bonding leave is covered under the CFRA.

SB 1383 takes effect January 1, 2021.

Key Takeaways:

• Like the federal FMLA law it is modeled on, the CFRA is complex to follow even for larger employers with seasoned HR professionals. Employers must be aware of employee eligibility requirements, the types of leave that qualify, provide the proper notices to employees, receive proper medical documentation from employees, and be prepared to hold a qualifying employee’s position open for up to 12 weeks in a year.
• If you publish an employee handbook that describes other kinds of personal or disability leaves available to your employees, you are required to include a description of family and medical leave in your handbook.
• Employers with 50 or more employees should implement separate FMLA and CFRA policies and be prepared to track qualifying leave separately. Now it will be possible for an employee to be eligible for 12 weeks of CFRA leave and an additional 12 weeks of FMLA leave in certain circumstances.
• Employers with New Parent Leave policies should remove them from their employee handbooks and instead transition to a CFRA policy.

 ABC Test for Independent Contractors Updated

AB 2257 amends AB 5 to revise and add exceptions to the “ABC Test” used to determine whether a worker is properly classified as an employee or independent contractor. AB 2257 doesn’t change the basic framework established by AB 5, but it revises and clarifies existing provisions and creates additional industry exceptions to the ABC Test. With the additions made by AB 2257, there are now more than 100 distinct exceptions, which vary in their specificity and complexity. Some are vague while others are extremely specific and narrow, qualified by multiple criteria and statutory references.

AB 2257 went into effect immediately upon signing.

Key Takeaways:

• Even with some of the new exceptions and clarifications added by AB 2257, employers should continue using caution in classifying workers as independent contractors.
• Consult with legal counsel about the law and how it impacts your specific work arrangements and circumstances, including which classification standard applies to a given arrangement, whether any of the numerous exceptions apply, and the level of risk of misclassification under the applicable standard.

Leave for Victims of Crime and Abuse

AB 2992 expands the prohibition on discrimination and retaliation against employees who are victims of crime or abuse and need time off. The law protects such employees when they take time off for judicial proceedings or to seek medical attention or related relief for domestic violence, sexual assault, stalking, or for any other crime that causes physical injury or that causes mental injury and a threat of physical injury. AB 2992’s expanded definition of “crime” includes criminal activity regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.

Employers with 25 or more employees must also permit crime victims to take time off for additional forms of relief, such as to obtain medical attention, obtain services from a victim services organization, and to obtain counseling.

Employers must provide employees with a written notice of their rights under the law.

AB 2992 takes effect January 1, 2021.

Key Takeaways:

• Employers are already required to have a written policy on accommodation for victims of domestic violence, sexual assault and stalking. Employers will need to update these policies to include crime victims as defined in the statute.

Paid Family Leave

Existing law provides for a State-sponsored family temporary disability insurance program, also known as the Paid Family Leave program. This provides wage replacement benefits to workers who take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement. AB 2399 updates the Paid Family Leave program to include time off for participation in a qualifying exigency related to the active duty or call to active duty of an individual’s spouse, domestic partner, child or parent in the Armed Forces of the United States.

AB 2399 takes effect January 1, 2021.

Key Takeaways:

• Update your employee handbook’s Paid Family Leave policy to reflect the additional basis for which employees qualify for paid leave benefits from the State.

List of Mandated Reporters Expanded

AB 1963 amends Section 11165.7 of the Penal Code to expand the list of mandated reporters to include human resource employees of a business of five or more employees that employs minors, as well as adults whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace. AB 1963 requires those employers to provide mandated reporters with training on identification and reporting of child abuse and neglect.

AB 1963 takes effect January 1, 2021.

Key Takeaways:

• If you have five or more employees and employ minors, you must provide mandated reporter training to your HR staff and other employees who have direct contact with minors.

Paid Sick Leave Designation

AB 2017 provides employees the sole discretion to designate days taken as paid sick leave under Section 233 of the Labor Code.

AB 2017 takes effect January 1, 2021.

Key Takeaways:

• Paid sick leave policies should be updated to state that the designation of sick leave taken for qualifying reasons shall be made at the sole discretion of the employee.
• If an employee has paid sick leave and calls out sick, you cannot automatically deduct the time from the employee’s sick leave bank. However, if an employee refuses to designate the time off as paid sick leave, you can count the day as an unexcused absence and treat it accordingly pursuant to your absence policies.

Workers Compensation COVID-19 Presumption

SB 1159 establishes a rebuttable presumption for workers’ compensation purposes for employers with five or more employees. The law will presume that employees who test positive for COVID-19 caught it at work, when:

• The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction; and
• The employee’s positive test occurred during a period of an “outbreak” at the employee’s specific place of employment.

An “outbreak” for employers with fewer than 100 employees means 4 employees test positive for COVID-19 within 14 calendar days. This presumption does not apply to employees who are working from home.

SB 1159 went into effect immediately upon signing and remains in effect until January 1, 2023.

Key Takeaways:

• The presumption of infection at work can be rebutted with evidence of measures in place to reduce potential transmission of COVID-19. It is therefore important that you have written policies and practices in place to mitigate the risk of spread, which are already required in any event.

Workers Compensation Reporting Requirements Related to COVID-19

SB 1159 also requires an employer with five or more employees who “knows or reasonably should know” that an employee has tested positive for COVID-19, to inform their workers’ compensation carrier within three business days of the following:

• An employee tested positive. However, the employer must not provide any personally identifiable information regarding the employee who tested positive unless the employee asserts the infection is work related or has filed a workers compensation claim form;
• The date when the employee tested positive, which is the date the specimen was collected for testing;
• The specific address or addresses of the employee’s specific place of employment during the 14-day period preceding the date of the employee’s positive test; and
• The highest number of employees who reported to work at the employee’s specific place of employment in the 45-day period preceding the last day the employee worked at each specific place of employment.

SB 1159 went into effect immediately upon signing and remains in effect until January 1, 2023.

Key Takeaways:

• You must report a positive test result to your workers’ compensation carrier within three business days regardless of whether the employee makes a workers’ compensation claim. Failure to comply can lead to fines of up to $10,000.

Employee Reporting Requirements for COVID-19 Exposure in the Workplace

AB 685 establishes strict COVID-19 recording and reporting requirements when employers receive notice of a potential COVID-19 exposure in the workplace. The law requires employers to provide a number of notices to different groups of employees within one business day after receiving notice of a potential COVID-19 exposure.

If an employer receives “notice of a potential exposure to COVID-19,” the employer must, within one business day, take the following actions.

• The employer must provide written notice to all employees (and their exclusive representative, if any) and the employers of subcontracted employees, who were on the premises at the same worksite as the “qualifying individual within the infectious period,” that they may have been exposed to COVID-19. Written notice may be provided in person, email, text message or other form of communications the employer normally uses if it can reasonably be anticipated that the employee will receive it within one business day. Additionally, the notice must be in both English and any language understood by the majority of employees. The new law also requires that the notice to any exclusive representative must contain the same information required in Cal/OSHA’s Form 300, Log of Work-Related Injuries and Illnesses, unless the information is inapplicable or unknown to the employer.
• The employer must provide “all employees who may have been exposed” (and their exclusive representative, if any) with information regarding COVID-19-related benefits to which they may be entitled under federal, state or local laws, including, but not limited to, workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave or negotiated leave provisions, as well as anti-retaliation and anti-discrimination employee protections.
• The employer must notify all employees (and their exclusive representative, if any) of the disinfection and safety plan that the employer plans to implement pursuant to CDC guidelines.

A “notice of a potential exposure to COVID-19” is defined as notification:

• From a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite;
• From an employee or their emergency contact that the employee is a “qualifying individual;”
• Through the testing protocol of the employer that the employee is a “qualifying individual;” or
• From a subcontracted employer that a “qualifying individual” was on the worksite.

A “qualifying individual” is someone who has: (1) a lab-confirmed case of COVID-19, (2) a COVID-19 diagnosis from a licensed health care provider, (3) a COVID-19 isolation order provided by a public health official or (4) died due to COVID-19.

Employers must keep records of the above notifications for three years.

AB 685 takes effect January 1, 2021.

Key Takeaways:

• Because the new law specifies detailed notice requirements with very little time to provide them, employers should consult with legal counsel to develop the necessary policies and procedures so they can be in place on January 1, 2021, when the law takes effect.

Public Health Official Reporting Requirements for COVID-19 Exposure in the Workplace

AB 685 also requires employers to notify their local public health agency within 48 hours of a COVID-19 “outbreak,” as defined by the California Department of Public Health (CDPH). As of October 18, 2020, the CDPH defined an outbreak in most instances as three lab-confirmed cases within two weeks, though CDPH could revise this definition.

Notice to the local public health department must include the names, number, occupations and worksite of the “qualifying individuals” as well as the business address and NAICS worksite code of the worksite where the qualifying individuals work. Any employer who has an outbreak under the new law must continue to give notice to the local public health department of any subsequent lab-confirmed cases of COVID-19 at the worksite.

Employers should note that the definition of “outbreak” under this law differs from the definition under SB 1159, which is related to workers’ compensation.

AB 685 excludes from the notice requirements employees who, as part of their duties, conduct COVID-19 testing or screening, or who provide direct patient care or treatment to individuals who tested positive for COVID-19, unless the qualifying individual is an employee at the same worksite. Additionally, the outbreak notice requirements do not apply to “health facilities” as defined by Health and Safety Code Section 1250.

AB 685 takes effect January 1, 2021.

Key Takeaways:

• Because the new law specifies detailed notice requirements with very little time to provide them, employers should consult with legal counsel to develop the necessary policies and procedures so they can be in place on January 1, 2021, when the law takes effect.

California Consumer Privacy Act (CCPA)

The CCPA took effect January 1, 2020 and provides California consumers rights over how and whether the personal data they provide to businesses is collected, retained and sold. The law includes employee data that employers collect for employment purposes. Last year, AB 25 largely exempted employee data from the CCPA for one year. AB 1281 then extended the exemption for one more year to the end of 2021, and now Proposition 24, which passed on November 3, 2020, further amends the CCPA and extends the deadline through 2023.

However, employers must still comply with the CCPA’s requirement to provide notice before, or at the time of, collecting personal information from an applicant or employee that describes every category of information that will be collected and the purposes for which it will be used. Private information includes employee names, contact information, demographic information, and various employment details.

The CCPA’s obligations apply to any for-profit business that does business in California and meets one of the following thresholds:

• Annual gross revenue that exceeds $25 million (adjusted for inflation); or
• Annually buys, receives, shares, or sells the personal information of more than 50,000 consumers, households, or devices for commercial purposes (alone or in combination); or
• Derives 50% or more of annual revenues from selling consumers’ personal information.

Key Takeaways:

• If you are a covered business under the CCPA, be sure to provide a proper notice to employees and applicants specifying the types of private information that you will collect. Given the law’s complexities, you should consult with legal counsel to develop a proper notice.

Increases to Minimum Wage and Minimal Salary Thresholds for Exempt Employees

The California minimum wage is set by law for automatic increases each year until it hits $15 per hour. The schedule of increases depends on the size of your business. Effective January 1, 2021, California’s minimum wage will be $14 per hour for employers with 26 or more employees and $13 per hour for employers with 25 or fewer employees.

A number of local minimum wage ordinances in California require some employers to pay a local minimum wage rate that is higher than the state rate.

The state’s minimum wage increase also means that the minimum salary that must be paid to an exempt employee also increases. The minimum monthly salary requirement for exempt executive, administrative and professional employees in California is no less than two times the state minimum wage for full-time employment. It is based on the state minimum wage, not any local minimum wage.

Starting January 1, 2021, the minimum monthly salary for an exempt employee of an employer with 26 or more employees will be $4,853.33 per month ($58,240 per year). The minimum monthly salary for an exempt employee of an employer with 25 or fewer employees will be $4,506.67 per month ($54,080 per year).

Key Takeaways:

• Be sure your payroll is set up so that any employees earning minimum wage will have their pay increased starting January 1, 2021.
• Review your exempt employees’ salaries to determine whether their pay must be increased. The failure to increase exempt employee pay to correspond with the minimum wage increase will result in a loss of the exemption, meaning the employer is liable for overtime, meal breaks, rest breaks and other related violations and penalties.

Employee Harassment Training

By January 1, 2021, employers with five or more employees must provide one hour of sexual harassment prevention training to nonsupervisory employees and two hours of such training to supervisors. These new requirements expand the prior harassment training law, which required employers with 50 or more employees to provide sexual harassment prevention training to all supervisors in California. Training must take place within six months of hire or promotion and every two years thereafter.

Key Takeaways:

• Ensure your current employees receive the required training by January 1^st.
• Employees hired in 2021 must receive training within six months of hire or promotion.

 

Contact Rivera Employment Law to discuss how these new developments affect your business.

Tel: (323) 546-4160

info@riveraemploymentlaw.com

The information provided herein is for informational purposes only and is not intended to and does not constitute legal advice.