KEVIN T. MEADE, ESQ. – Managing Partner – California
2022 has been a busy year in California for employment law developments. Between California state and local governments, many new pieces of employment legislation were passed this year, and will take effect on January 1, 2023. Here are the top employment law developments that we’re advising our clients about at TALG:
Pay Data Reporting – “Pay Transparency”
The California state legislature has taken aggressive steps to require pay transparency. In 2020, the state enacted legislation to require certain employers with 100 or more employees to file pay data reports with the state. This year, Senate Bill 1162 (SB 1162) expanded the law as follows:
• Requiring all private employers with 100 or more employees to file pay data reports – regardless of whether they are required to file a similar federal report.
• Enlarging the scope of information required to be included in pay data reports to include median and mean hourly rates within each job category by race, ethnicity, and sex.
• Requiring employers who have 100 or more employees hired through labor contractors to file a separate pay data report covering those employees.
• Adding additional civil penalties for failure to submit pay data reports.
SB 1162 requires employers with 15 or more employees to include pay scale information in any job postings.
COVID-19 Supplemental Paid Sick Leave
California’s COVID-19 Supplemental Paid Sick Leave legislation (SPSL) provides employees with supplemental paid sick leave for various COVID-related absences – in addition to “regular, non-COVID” paid time off for employees. The original SPSL legislation expired on September 30, 2021. In February, 2022, a new SPSL law (SB 114) was enacted. SB 114 applies to private employers with 26 or more employees, and provides employees with two separate “leave banks” of time of up to 40-hours, as summarized below:
• The first “leave bank” of up to 40 hours is available if an employee is unable to work (or telework) due to the employee or employee’s family member being subject to a quarantine or isolation period, pursuant to an order or guidance by a government health agency or based on the advice of a health care provider, or for other reasons outlined below:
o the need to care for a child whose school or childcare is closed due to COVID
o the employee or family member’s vaccination appointment or vaccination side effects
o The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster (note: the employer may limit leave for this purpose to 3 days/24 hours, unless the employee presents verification from a health care provider that the employee or his/her family member is continuing to experience symptoms related to the vaccine);
o The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
o The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
• The second “bank” of up to 40 hours may be used if the employee, or a family member for whom the employee is providing care, tests positive for COVID-19, and the employee cannot work remotely. The second “bank” of SPSL may be used at any time (i.e., employees need not exhaust the first 40 hour “bank” before using SPSL from the second “bank”). An employee may choose which bank they wish to use.
Cannabis Use Outside of Work
While not effective until January 1, 2024, California Assembly Bill 2188 (AB 2188) makes it unlawful for an employer to discriminate against a person in hiring, or to take adverse action against the employee based on (1) an employee’s use of cannabis off the job and away from the workplace, or (2) a drug-screening test that found the employee to have non-psychoactive “cannabis metabolites” in their hair, blood, urine, or other bodily fluids. AB 2188 restricts an employer’s ability to act based merely on “metabolite testing,” but still allows adverse action based on THC-positive testing, and it does not permit an employee to possess, be impaired, or to use cannabis on the job. AB 2188 does not apply to an employee in the building and construction trades, preempt requirements for federal contracts, or interfere with specified employer rights to maintain a drug and alcohol-free workplace.
Workplace COVID / Safety Issues
Regarding COVID exposure, under existing law (AB 685), if an employer receives notice of potential exposure to COVID-19, the employer must provide written notice of the potential exposure within one business day to all employees who were at the worksite. This notification requirement was set to expire on January 1, 2023. AB 2693 extends the reporting requirement to January 1, 2024, and gives employers additional options for complying with notification requirements. While it requires employers (in lieu of individual notice) to simply post a notice in the workplace for 15 days when there has been a COVID-19 exposure, it also allows the employer, in the alternative, to provide individual notices in the same general manner as previously required under the law. AB 2693 does not eliminate requirements that Cal/OSHA may impose regarding individual notification requirement, so employers will need to monitor any individual notice requirements issued by Cal/OSHA.
SB 1044 prohibits an employer from taking or threatening adverse action against any employee, during an “emergency condition” for refusing to report to or leave a workplace or worksite within the affected areas because the employee has a reasonable belief that the workplace or worksite is unsafe.
An emergency condition is defined as:
• Conditions of disaster or extreme peril to the safety of persons or property caused by natural forces or a criminal act.
• An order to evacuate a workplace, worksite, or worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act.
SB 1044 specifies that an emergency condition does not include a health pandemic.
AB 2068 provides that required Division of Occupational Safety and Health workplace health or safety citations or orders be written in the top seven non-English languages used by limited-English-proficient adults in California, which are: Spanish, Cantonese, Mandarin, Vietnamese, Tagalog, Korean and Armenian.
Bereavement Leave Requirement
AB 1949 requires employers with five or more employees to allow employees to take up to five days of bereavement leave upon the death of a family member. The bereavement leave may be unpaid, but an employee can use other available paid time such as vacation pay, personal leave, sick leave, or compensatory time off that is regularly offered by the employer. The bereavement leave must be completed within three months of the death of the family member and is only available to employees who have worked for the employer for at least 30 days prior to the commencement of the leave.
Leave to Care for Family Members
The California Family Rights Act (CFRA) is the state’s version of the federal Family Medical Leave Act (FMLA). It allows eligible employees to take up to twelve workweeks of unpaid leave for certain family and medical reasons without jeopardizing their job security. AB 1041 extends the CFRA to provide that (in addition to the already-covered family members) an employee can take job-protected leave to care for a “designated person.” The bill defines a “designated person” to mean any individual related by blood or whose association with the employee is the “equivalent of a family relationship.” AB 1041 provides that an employer may limit an employee to one designated person per 12-month period.
Disability Insurance Benefits
SB 951 increases the amount of unemployment and wage replacement benefits available for low-wage employees under California’s Paid Family Leave (PFL) program and State Disability Insurance (SDI) programs. Workers making less than the state’s average wage may be eligible to receive 90 percent of their regular wages under the PFL and SDI programs for disabilities or covered incidents occurring on or after January 1, 2025.
2022 saw California state legislators enact laws with significant workplace protections for employees. TALG will continue to monitor all employment and workplace laws affecting its clients in California, so that our clients can best prepare for and adjust to these laws. Reach out to TALG with any questions, comments or concerns.