California Employment Law Update

by Sonya Goodwin

We are now six months into the pandemic and various social distancing orders, and in that time, the California legislature has passed quite a few employment laws, some of which are COVID-related.  Below is a summary of these new laws and amendments to current laws. 

COVID-19 Reporting Requirements for Employers

Under AB 685, employers are required to notify employees, representatives of the employees, and employers of subcontracted employees, in writing, within one business day of receiving notice of a potential workplace exposure to COVID-19.  Employers are not required to inform all employees of potential exposure; rather, they need only inform the above-mentioned individuals who were on the premises at the same worksite as the potentially infected individual within the infectious period.  “Worksite” is defined as the “building, store, facility, agricultural field, or other location where a worker worked during the infectious period.”  “Infectious period” means “the time a COVID-19 positive individual is infectious, as defined by the California Department of Public Health.”  Employers must also inform these individuals of COVID-19 related benefits to which they may be entitled, including, workers’ compensation, various forms of sick leave available, and anti-retaliation and anti-discrimination protections. Employers must also notify these individuals about disinfection and safety plans that the employer plans to implement per CDC guidelines. 

Additionally, employers must notify public health officials within 48 hours if the numbers of cases are considered an “outbreak,” which is defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households. 

Employers may not disclose employee medical information unless otherwise required by law.  Employers must maintain records of the written notices it provides to employees, employee representatives, and employers of subcontracted employees for at least three years.

This law goes into effect on January 1, 2021.

Workers’ Compensation for COVID-19 Injuries

SB 1159 codifies the governor’s executive order that created a rebuttable presumption that an employee who is infected with COVID-19 within 14 days of working outside the home became infected at the workplace, and as such, the medical and other related costs are compensable under workers’ compensation. 

While the executive order expired on July 5, 2020, the newly enacted SB 1159 retroactively codified it, but also created more limited workers’ compensation protections to certain workers through January 1, 2023.  For example, under SB 1159, if, after July 5, 2020, specific front line workers, such as firefighters, peace officers, and employees who provide direct patient care, test positive within 14 days after the employee performed services at the employee’s place of employment, there is a disputable presumption that the illness arose out of and in the course of the employment and is covered by workers’ compensation for full hospital, surgical, medical treatment, disability indemnity, and death benefits.

Additionally, if employees not mentioned above test positive during an outbreak at the employee’s place of employment, and whose employer has five or more employees, there is a disputable presumption that this injury arose out of and in the course of employment and is covered by workers’ compensation, and the same benefits as mentioned above are compensable.  An “outbreak” exists if (1) the employer has 100 or fewer employees at a specific place of employment (i.e. a building, store, facility, or agricultural field where an employee performs work), and 4 employees test positive for COVID-19, or (2) the employer has more than 100 employees at a specific place of employment and 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19 during a continuous 14-day period.   This section of the bill is retroactive to July 6, 2020.

SB 1159 also provides reporting requirements to the employer’s workers compensation claims administrator when the employer knows or reasonably should know that an employee has tested positive for COVID-19.

SB 1159 is effective immediately and remains in effect until January 1, 2023.

Expanded Family Leave for Smaller Employers

SB 1383 expands the California Family Rights Act (CFRA) to require employers of five or more employees to provide up to 12 workweeks of unpaid protected leave to an employee (1) to bond with a new child, (2) to care for their own serious health condition, or to care for a child, parent, grandparent, grandchild, spouse, or domestic partner who has a serious health condition, or (3) because of a qualifying exigency related to the covered active duty or call to covered active duty or an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.  Similar to the CFRA and New Parent Leave Act (NPLA) requirements, the employee must be employed with the employer for at least 12 months and have at least 1,250 hours of service in order to qualify for the leave. 

While the leave is unpaid, an employee may elect, or the employer may require, an employee to substitute any of the employee’s accrued vacation leave or other accrued time off.  If the leave is for the employee’s own serious health condition, the employee may elect, or the employer may require the employee to substitute accrued paid sick leave during the period of leave.  If the parties mutually agree, the employee may use accrued paid sick leave to bond with a child or care for a family member, as described above. 

Under existing law, if both parents of a child are employed by the same employer, both employees receive a total of 12 weeks of unpaid protected leave during a 12-month period.  Under the new law, both employees are entitled to 12 weeks of leave during a 12-month period.

This law goes into effect on January 1, 2021.

Amendment to Independent Contractor Law

AB 5, which went into effect on January 1, 2020, created a presumption that a worker was an employee, and codified the ABC test to determine whether a worker was an independent contractor.  AB 5 included some exemptions to the ABC test, and for the most part required application of the common law test – commonly referred to as the Borello test – to those exempt categories.   

Governor Newsom recently signed AB 2257, which provides additional exemptions under AB 5.  The additional categories of workers who are exempt from the ABC test (subject to certain requirements for some categories), and instead apply the Borello test, include music industry professionals; performance artists; specialized performers hired to teach a class for no more than one week; appraisers; registered professional foresters; licensed landscape architects; home inspectors; manufactured housing salespersons; competition judges; and certain individuals engaged by international exchange visitor programs, among others.  AB 2257 also eliminated some of the restrictions that AB 5 set on the journalism industry, and expanded the business to business exemption and referral agency exemption. 

The bill is effective immediately. 

Expanded Supplemental Paid Leave for COVID-19

AB 1867 requires employers who employ 500 or more employees in the U.S. or health care workers who were exempt from the Federal Family First Coronavirus Response Act (FFCRA) to provide supplemental paid leave for COVID-19 related illnesses.  The paid sick leave applies to any employee who leaves his or her home in order to perform work for the employer and is unable to work due to the following:

  • The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  • The covered worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  • The covered worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Each employee is entitled to the following:

  • 80 hours of paid sick leave if they are full-time and worked at least 40 hours in the two weeks preceding taking the paid sick leave. 
  • If they work a normal schedule of less than 40 hours, then the total number of hours the employee is normally scheduled to work during a two-week period.
  • If the employee works a variable schedule, then 14 times the average number of hours the employee worked during the 6 months (or less if the worker has been employed for less than 6 months) preceding the date of taking the paid sick leave.

The employee may determine how many hours of paid sick leave he/she wants to use up to the maximum available, but must request the leave verbally or in writing. 

The rate of pay for the sick leave is the greater of (1) the employee’s regular rate of pay for the last pay period, (2) the state minimum wage, or (3) local minimum wage, but no more than $511/day and $5,110 total.

If the employer already provides paid sick leave to employees for the reasons set forth above (other than the regular California paid sick leave), the employer does not have to provide additional paid sick leave.  For example, Los Angeles employees would not receive an additional 80 hours of paid sick leave if they already received supplemental paid sick leave under the LA ordinance, or if an employer provided the same paid sick leave benefits on its own accord.  Additionally, if an employee has already taken unpaid time off for the reasons set forth above between March 4, 2020 and the present, the employer can retroactively provide pay for that time instead of giving additional paid time off.   

Covered employers must provide notice to employees via this poster:  https://www.dir.ca.gov/dlse/COVID-19-Non-Food-Sector-Employees-poster.pdf

Covered employers are also required to inform each employee of how much available paid sick leave he/she has on each wage statement (similar to the requirement for California’s regular paid sick leave law), to go into effect on the next pay period.

This law goes into effect immediately, and expires on the latter of December 31, 2020 or until the expiration of any federal extension of the FFCRA.

The penalty for non-compliance is the greater of $250/day or three times the amount of paid sick days withheld, up to a maximum of $4,000 per employee.

Harassment Training Deadline is Approaching

Just a reminder that the deadline to provide anti-harassment training to all employees (two hours to supervisory employees, one hour to non-supervisory employees) is January 1, 2021.  All employers with five or more employees are required to provide this training.

If you need assistance finding the right training course for your employees, or would like us to provide virtual training to your employees, please contact our office.

New Minimum Wage

The state minimum wage for employers with 25 or fewer employees is increasing to $13/hour, and $14/hour for employers with 26 or more employees, effective January 2, 2021.  Please make sure to check local minimum wage laws that may be higher than the state minimum wage requirements in all jurisdictions in which you conduct business.

If you have any questions on any of the above, or would like us to review or update your employee handbook, please do not hesitate to contact Sonya Goodwin.

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