While 2020 was a memorable year for all the wrong reasons, it will not be remembered for sweeping changes in employment laws by the California Legislature, except as they related to the COVID pandemic. I am not going to reiterate the COVID related laws that were enacted and then expired on December 31. Rather, I am going to focus on the most significant new laws applicable to employers of less than 100 employees. As you will see, most have been at least inspired by the pandemic.
Expansion of the California Family Rights Act (CFRA) to Smaller Employers
Perhaps the most significant change for those of you receiving the Employment Law Update is the expansion of the CFRA to small employers by AB 1383. The CFRA originally applied to employers of 50 or more. It is now applicable to employers of just 5 or more. The CFRA provides that an employee, who has at least 1,250 hours of service with the employer during the previous 12-months period, may take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves, a child, parent or spouse. The new law expands family members to also cover grandchildren, grandparents, siblings and parents-in-law.
Following right along, AB1867 added a mediation requirement for employers with between five and 19 employees relative to disputes involving the CFRA. Either the employee or the employer can demand such mediation in which case the employee’s right to sue is suspended until the mediation has been completed. It appears that the mediation will be conducted by the Department of Fair Employment and Housing. This is a pilot program that expires January 1, 2024.
Your Employee Handbook should be updated to reflect these new laws.
Use of Sick Leave
Clearly COVID inspired is AB 2017 which provides that employees can use up to not less than six months of accrued sick leave to care for a family member.
While it is my experience that most employers are already notifying the local health department as well as customers and co-employee of an employee’s infection, AB 685 spells out exactly what the employer must do as it relates to notifying employees. Section 6409.6 was added to the Labor Code and reads, in part, as follows:
1. If an employer or representative of the employer receives a notice of potential exposure to COVID-19, the employer shall take all of the following actions within one business day of the notice of potential exposure:
- Provide a written notice to all employees, 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 in a manner the employer normally uses to communicate employment-related information. Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
- Provide a written notice to the exclusive [union] representative, if any, of employees under paragraph (1).
- Provide all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including 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 protections of the employee.
- Notify all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.
If there is an outbreak of COVID-19 cases at the same worksite within a 14-day period, you must also notify your local health department within 48 hours. You must also update the local health department with subsequent COVID-19 cases thereafter.
This is a complicated law and has workers compensation implications, as discussed below. Let me know if you need assistance in interpreting or implementing these requirements.
AB 1159 established the rebuttable presumption that first responders, health care personnel and certain “other employees” who contract COVID-19 have work related injuries which are covered by workers’ compensation. Employers must report this to their compensation carrier and provide the information discussed above within 3 days of when they “know or reasonably should know” that the employee has tested positive. The “other employees” are those who work for employers of 5 or more who test positive when there has been an “outbreak” which is defined for employers of less than 100 as having 4 employees test positive within a two- week period or when public authorities order the place of employment closed due to a risk of COVID infection.
Hand Washing for Food Service Workers
AB 1867 mentioned above also provides that food service workers can break every 30 minutes to wash their hands.
Contemplating the next pandemic, the Legislature enacted AB 301 which requires health care employers to stockpile sufficient personal protective equipment by January 1, 2023 to last 45 days in the event of the declared state of emergency.
In non-COVID related legislation, there were certain revisions and clarification to AB 5 which, as you may recall, was 2019 legislation that codified the “ABC test” for distinguishing between employees and independent contractors. In addition to Proposition 20, which exempted Uber drives and some others from employee status, there were about 30 bills introduced of which one passed. AB 2257 exempted certain creative professionals such as photographers, writers, musicians, fine artists as well as real estate appraiser, home inspectors and a slew of other “creative” endeavors as “professional” subject to the prior “Borello” test for independent contractors. This is the test traditionally used by taxing entities. Also exempted are “business to business” relationships between 2 sole proprietors under specific circumstances. The list of covered jobs and the specific requirements are long. But if you are curious, I can send you a copy of the bill or we can discuss it.
Time Off for Crime Victims
The Legislature previously allowed unpaid time off for crime victims to participate in court proceedings. Employers of 25 or more must now allow unpaid time off for victims of crime to seek medical or psychological treatment or to obtain services from a domestic or rape shelter or service or to participate in safety planning or related activities. If the absence is unscheduled, the employer cannot take any action against the employee provided that the employee provides certification within a “reasonable” time to the employer.
Successor Liability for Wage and Hour Judgments
AB 3075 provides that a “successor employer” is liable for any judgement against the prior business owner for any wages, damages and penalties owed to any former employee. Successorship is established in various ways including using the same facility or substantially the same workforce to offer substantially the same services as the former owner. However, successor liability can only attach when there is a final judgment, after all appeals, against the former owner.
I can’t leave out a prior law that changed with the passing of the year. California’s minimum wage increase to $14 per hour for employers with 26 or more employees and went to $13 to those with fewer employees.
As mentioned above, I have not reported all the new laws. If you have questions about any of those reported or that you may have otherwise heard of, give me a shout and I will try to find the information for you. Also, some will ask should their Employee Handbooks be updated. The answer this year is “yes”, primarily because of the extension of the CFRA to small employer.
Finally, Happy New Year to all of you! It has to be better than the last!
Very truly yours,
STRAUSS LAW GROUP
Anthony R. Strauss