(Un)Happy New Year?
We’re only weeks from the new year and employment lawyers and HR professionals are still reeling from the changes that COVID-19 brought to the workplace. While many are starting the countdown now to 2021 with cautious optimism that some normalcy will return to the office, take a moment to check on the HR professionals in your life. Most of us are still wading through the newest regulations and "guidance" from Sacramento looking for a life preserver. Much of it is due to preparing for the rather profound (hyper)activity from our courts and legislators – which contributed to the fair state of California receiving the dubious distinction of No. 2 “Judicial Hellhole” in the nation. 1
A few notable high(low?)lights heading into 2021:
- AB 1867 – California Supplemental Paid Sick Leave: Governor Newsom signed AB 1867 which requires private employers with 500 or more employees nationwide to provide COVID-19-related supplemental paid sick leave to their California employees. Employees who must leave their home to perform work are entitled to COVID-19 supplemental paid sick leave if they are unable to work when they are (1) Subject to a COVID-19 federal, state, or local quarantine or isolation order; (2) Advised by a health care provider to self-quarantine or self-isolate due to COVID-19 concerns; or (3) Prohibited by the employer from working because of concerns of potential transmission of COVID-19. And an employer may not require an employee to use other paid time off, paid or unpaid leave or vacation time before or in lieu of COVID-19 supplemental paid sick leave, and expressly provides additional leave on top of any paid sick leave that may already be available to employees under Labor Code Section 246.
- SB 1159 – Workers’ Compensation and COVID-19: For employers of 5 or more, SB 1159 creates a "disputable" presumption that an employee contracted COVID-19 in the workplace if certain circumstances are met. Under the new Labor Code section 3212.88, there is a rebuttable presumption of workers’ compensation coverage when an employee tests positive for COVID-19 within 14 days after performing services at their place of employment at the employer’s direction and the employee's positive test occurred during a period of an “outbreak” at the workplace.2 The presumption is “disputable” in that an employer may challenge the presumption with evidence of: (1) measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment; and/or (2) the employee’s non-occupational risks of COVID-19 infection.
- SB 1383 – California Family Leave Rights Act (CFRA) Expansion: SB 1383 expands the California Family Rights Act to require businesses with as few as 5 employees to provide 12 weeks of mandatory family leave per year. The bill also expands "family members" to include grandparents, grandchildren, siblings, domestic partners, and adult children with a serious health condition. SB 1383 deletes the provision of law that specifies that if both parents work for the same employer, the employer is not required to provide more than 12 weeks for leave in connection with the birth, adoption or foster care placement of a child. Therefore, such an employer may now be required to provide 12 weeks to both employees. In addition, SB 1383 deletes language from the CFRA that authorizes an employer to refuse reinstatement to salaried employees who are among the highest 10% of the employees and where the refusal is necessary to prevent substantial and grievous economic injury.
- AB 2257 – Worker Classification Revisions: AB 2257 extensively revises the provisions added by AB 5 of 2019 to exempt bona fide business-to-business contracting relationships, and to add industry-specific exemptions (including fine artists, freelance writers, translators, editors, advisors, producers, copy editors, illustrators, proofers, record directors, insurance underwriters, home inspectors, and individuals who contract to provide services at a single-engagement event), and clarifies existing industry-specific exemptions. AB 2257, however, notably makes no accommodations for certain transportation and technology companies that connect drivers to passengers (e.g. Uber and Lyft – however California’s Proposition 22 may change that come November 3).
- AB 2143 – No Hire Provisions: Under existing California law (C.C.P Section 1002.5) settlement agreements may not contain a provision that restricts a settling aggrieved party from working for the employer against whom the employee has filed a claim (or any parent company, subsidiary, division, affiliate, or contractor of the employer). AB 2143 revises that law to require that the employee must have filed the claim in "good faith"3 for the prohibition to apply. The employer must also have documented any sexual assault or sexual harassment before the aggrieved employee filed the claim. AB 2143 also expands the exceptions to the no-hire provision prohibition to include a determination that the aggrieved person engaged in any criminal conduct.
- AB 685 – COVID-19 Reporting: AB 685 requires employers, within one business day of receiving notice of potential exposure to COVID-19 in the workplace, to: (1) Provide written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19; (2) Provide written notice to employee representatives, including unions and sometimes attorneys, who may represent employees; (3) Provide written notice to employees and/or employee representatives regarding COVID-19-related benefits that employee(s) may receive, including workers’ compensation benefits, COVID leave, paid sick leave, and the company’s anti-discrimination, anti-harassment, and anti-retaliation policies; and (4) Provide notice to employees regarding the company’s disinfection protocols and safety plan to eliminate any further exposures.
- AB 1947 – DLSE Statute of Limitations: AB 1947 amends Section 98.7 of the Labor Code to increase the deadline for filing Labor Commissioner complaints from six months to one year from the date on which they are “discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner.” The bill also amends Section 1102.5 of the Labor Code to authorize courts to award reasonable attorney’s fees to plaintiffs who bring a successful Section 1102.5 whistleblower action. There is no similar benefit for employers if they successfully defend such an action.
With all this depressing news is there anything positive coming out of Sacramento? Governor Newsom did veto AB 3216. That bill would have imposed a “right to recall” mandate on certain industries in California, meaning employees laid off or furloughed due to COVID-19 must be hired back by the company according to seniority. This bill would have imposed burdensome mandates on some industries hit hardest by the pandemic. While it isn't much, at least it's something …. Here’s hoping that with a little luck we can further surrender our position in the Judicial Hellhole rankings.
For more information or to discuss any of your employment concerns, please contact our employment attorneys at Hall Griffin LLP.
1. Yes - it really is a “thing:” https://www.judicialhellholes.org/ But hey – we just dropped to Number 2 as Philadelphia earned the top spot on the list. #GoBirds
2. An “outbreak” is when, within 14 calendar days, any of the following occurs at a place of employment: (1) The employer has 100 employees or fewer at a specific place of employment, and 4 employees test positive for COVID-19; (2) The employer has more than 100 employees at a specific place of employment, and 4% of the workforce test positive for COVID-19; or (3) A specific place of employment is ordered to closed because of COVID-19.
3. The section, however, does not further define what exactly entails a claim to have been made in “good faith”, thus adding to the likelihood of further court involvement.