Hunton Employment & Labor Perspectives

California has enacted a number of new laws (some of these have been covered in more detail on this blog and are linked below). The following are the most significant changes that California employers can expect as we move into the new year:

• Covid-19 Reporting to Workers’ Compensation Claims Administrator. Effective as of September 2020, when an employer knows or reasonably should know that an employee has tested positive for Covid-19, the employer must report to their workers’ compensation claims administrator that : 1) an employee tested positive, 2) the date the employee tested positive, 3) the address of the employee’s place of employment in the 14-days preceding the date of the test, and 4) the highest number of employees reporting to that work location in 45-day period preceding the last day the employee worked at the location.  This information is kept by the claims administrator for the purpose of tracking an “outbreak,” defined as 4% of employees at a specific work location testing positive for Covid-19 or a specific work location is ordered to close by a public health official.
• Covid-19 Workers’ Compensation Rebuttable Presumption. We covered several bills pending in the California legislature regarding the work-relatedness of Covid-19 as it pertains to workers’ compensation benefits in a prior blog post found here.  The California legislature passed SB 1159 which created two rebuttable presumptions:  1) employees who reported to the workplace between March 19, 2020 to July 5, 2020 who tested positive for Covid-19 within 14 days of that time period qualify for workers’ compensation benefits and 2) employees who test positive within 14 days of reporting to their workplace during an “outbreak.”
• Covid-19 Notices and Recordkeeping Requirements. Please see our blog post regarding employer obligations as to providing written notice of potential Covid-19 exposure and recordkeeping of potential Covid-19 exposures.
• Covid-19 Supplemental Paid Sick Leave. Effective as of October 2020 until December 31, 2020 or when the FFCRA expires, if later, employers with 500 or more employees nationwide must provide up to 80 hours of Covid-19 supplemental paid sick leave (SPSL). SPSL may be used for any of the following reasons: 1) the work is subject to a federal, state, or local quarantine or isolation order related to Covid-19, 2) the worker is advised by a healthcare provider to self-quarantine or self-isolate due to concern related to Covid-19, or 3) the worker is prohibited from working by a hiring entity due to health concerns related to the potential transmission of Covid-19.  According to the DLSE, employers may not require or condition leave on an employee obtaining a medical certification.

SPSL is in addition to any unpaid leave, paid time off, or vacation time provided by the employer.  SPSL is required to be reflected on employees’ pay stubs or by a separate writing along with the employee’s payment of wages.  Required posters may be found here for food sector workers and here for other employees.

• Changes to AB 5 (California’s Independent Contractor Law): We previously covered carve-outs to AB 5 in this blog post.  The California electorate passed Prop 22, which created another exemption to AB 5 for app-based rideshare drivers.  Drivers will remain independent contractors under the new law.  The new law also provides drivers with limited healthcare subsidies, some reimbursement for gas and vehicle costs, and a minimum earnings guarantee of 120% the minimum wage applied to the time drivers were engaged with the app.
• New Requirement for Diversity in Leadership: California requires publicly-held corporations headquartered in California to add at least one director from an underrepresented community on their board by December 21, 2021.
• Expansion of Family and Medical Leave Law: We covered this topic in more detail in this blog. The California Family Rights Act (CFRA) was significantly expanded to cover employers with five or more employees, whereas the current version of the CFRA covers employers with 50 or more employees. Additionally, the new law allow new parents who work for the same employer to take 12 weeks for himself or herself for baby bonding.  The current CFRA requires new parents who work for the same employer to split 12 weeks between the two.
• Extension of Time for Employees to File a Complaint with the DLSE: The 6-month deadline for employees to file labor code complaints alleging discharge or discrimination in violation of any law enforced by the Labor Commissioner has been extended to one year.
• New Requirement that Employers Submit Annual Pay Data Reports: Please see our blog post about this topic.
• Changes to No Re-Hire Provisions. California added another exception to the prohibition on the use of no-rehire provisions in settlement agreement of employment disputes.  The current law permits a no-rehire provision unless the aggrieved party engaged in sexual harassment/assault.  The new law allows a no-rehire provision if the aggrieved party has engaged in criminal conduct.  For the sexual harassment/assault and criminal conduct exceptions to apply, an employer must have documented the conduct before the employee brought a claim against the employer.

California continues to be an evolving legal landscape for employers.  In light of these changes to California law, employers may want to take this time to review existing employment policies and practices and be prepared to update the same.