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Just in time for Halloween and employee renewal season, the California Legislature has passed new labor laws that are sure to give employers nightmares. From expanding the concept of “family” for absenteeism, more time to take that additional paid COVID-19 leave, protection against drug abuse discrimination and reproductive health issues, fair wages, and enhanced workplace safety rights, California employers’ failure to keep up with these changes can be terrifying! Here’s what employers need to know now to avoid a horror show in the future.
Lost leaves
Expanding Who Qualifies for Malpractice Insurance. The California Family Rights Act (CFRA) continues to expand, allowing an employee to take parental leave to care for a sick family member. Recent amendments to CFRA have expanded this definition to include grandparents, grandchildren, siblings, children of any age, and parents. AB 1404 the CFRA goes one step further by expanding its scope to include a “specified person,” meaning a person related by blood whose relationship to the employee is similar to a family relationship.
AB 1404 also expands the definition of “family member” under California’s sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, to include a “designated person.” “Designated person” is defined broadly and includes persons designated by the employee when the employee requests sick days.
Letting Go of Death. AB 1494 also amends the CFRA by providing eligible employees with at least 5 days of unpaid leave related to the death of a family member. “Family member” for the purposes of this act means a spouse or child, parent, sibling, grandparent, grandchild, cohabitant or parent-in-law. The employer may not require such leave to be taken, but may request that the leave be completed within three months from the date of the family member’s death.
Extended COVID Paid Leave Rights (Effective September 29, 2022)
AB 152 extends an employee’s right to take additional paid COVID-19 leave (if it expires on September 30, 2022) to December 31, 2022. This law does not require employers to provide new paid leave in addition to the amount of additional COVID-19 paid leave previously required, but will only extend the time the employee can use that paid leave.
Discrimination in Employment
Cannabis care. AB 2188, effective January 1, 2024, prohibits employers from discriminating against an applicant or employee for off-duty drug use and from leaving the workplace. Additionally, the law prohibits employers from hiring an employee based on a drug test that revealed a non-psychoactive drug. metabolites. These practices are now discrimination in violation of the Fair Employment and Housing Act (FEHA). This law is intended to encourage the use of diagnostic tests THC (indicating impairment) as opposed to metabolites (does not indicate impairment and can remain in a person’s system for weeks). The law does not apply to workers in the building, construction industry or positions that require a federal background check or security clearance.
Reproductive Health
SB 523 it is illegal under FEHA to discriminate against an applicant or employee based on their family health decision. “Reproductive health decision-making” includes the decision to use or access a drug, device, product, or medical service for reproductive health. The definition of “sex” under FEHA may include reproductive health determinations. An employer may not require an employee or candidate to disclose information related to their reproductive health decisions.
SB 523 also amends the California State Code to require, by January 1, 2024, that health benefit plans and contracts provide coverage for 1) preventive measures and related services to the requirements under Section 1367.25 of the Health and Safety Code and Section 10123.196 of the Insurance Code; and 2) vasectomies and related services as required under Section 1367.255 of the Health and Safety Code and Section 10123.1945 of the Insurance Code.
Television Charges/Data Charges and Accuracy
Current California law requires an employer to provide the base pay scale to an applicant upon request. As discussed on our blog last week, SB 1162 expands existing law to require an employer to provide such information to an employee about the position the employee holds, and other new obligations. An aggrieved employee can file a complaint with the Labor Commissioner or file a civil suit.
Workplace Safety
SB 1044 Prohibits employers from taking or threatening to take adverse action against an employee for failing to report in the workplace, because of a “reasonable belief” that the workplace is unsafe due to a “state of emergency .” SB 1044 also prohibits an employer from denying an employee access to an employee’s mobile device or other communication device for the purposes of seeking emergency assistance, assessing the safety of a situation, or communicating or to a person to verify their safety. Accidental death” means the following: (i) Circumstances of accident or serious danger to the safety of persons or property at the workplace or in the workplace caused by natural forces , or by any criminal act; (ii) An order to evacuate a workplace, a place of employment, an employee’s home, or the employee’s child’s school due to environmental hazards or a criminal act. “Emergency condition” does not include a medical condition. An employee’s belief is “reasonable” if a reasonable person would have determined, under the circumstances known to the employee at the time, that death or serious injury would have been imminent if that person had participated, and or remain in the workplace. Although a violation of this law may be the basis for an Attorney General Act (PAA), the law gives the employer the right to recover under Labor Code Section 2699.3.
Please remember: this is just an overview of the new law affecting California employers, not a summary. Employers should work with their Akerman attorneys to ensure policies and practices are up to date with these new laws.
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