It’s that time of year again! With a deadline of September 30, Governor Gavin Newsom signed many of the California Legislature’s labor and employment bills into law. Here’s a quick look at some of the new laws that will impact employers. Unless noted otherwise, the new laws take effect January 1, 2023.
Leaves of Absence
AB 1041 expands who an employee can take leave to care for under both the California Family Rights Act (CFRA) and California’s paid sick leave law. Beginning January 1, 2023, employees can take CFRA leave or paid sick leave to care for a “designated person.”
In both instances, an employer may limit an employee to one designated person per 12-month period.
The governor also signed AB 1949, which makes bereavement leave a protected leave of absence. The law applies to all private employers with five or more employees and all public employers. Employees may take up to five days of bereavement leave upon the death of a family member, including a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law.
Bereavement leave may be unpaid, but employees can use their existing available leave (e.g., vacation, PTO, sick leave, etc.). Employers can require documentation to support the leave, and the leave must be completed within three months of the family member’s death.
Discrimination
Two new laws will expand the scope of California’s Fair Employment and Housing Act (FEHA).
First, AB 2188 adds cannabis protection to the state’s discrimination law. Specifically, employers will be prohibited from discriminating against an employee or job applicant based on the person’s use of cannabis off the job and away from the workplace. Employers may still conduct preemployment drug testing and refuse to hire someone based on a valid preemployment drug screening that doesn’t screen for non-psychoactive cannabis metabolites.
The new law also doesn’t permit an employee to possess, be impaired by or use cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace.
Importantly, AB 2188 doesn’t go into effect until January 1, 2024.
SB 523, among other things, amends the FEHA to make it unlawful to discriminate against an employee or job applicant based on their “reproductive health decision-making.” Reproductive health decision-making includes, but is not limited to, a decision to use or access a particular drug, device, product or medical service for reproductive health.
Pay Scales, Pay Data
As previously reported, SB 1162 requires employers to make pay scale information available to job applicants and employees as well as expands California’s pay data reporting requirements.
Under the new law, employers must, upon request, provide a pay scale to an employee for the position the employee is working. Additionally, employers with 15 or more employees must include the pay scale information for a position in any job posting.
SB 1162 also revises and expands California’s pay data reporting requirements, which apply to employers with 100 or more employees. In addition to reporting the number of employees by race, ethnicity and sex by job-title categories and pay bands, California employers must report the median and mean hourly rate within each job category, for each combination of race, ethnicity and sex in the report.
Workplace Safety
SB 1044 prohibits an employer, in the event of an “emergency condition,” as defined in the law, from taking or threatening adverse action against the employee for refusing to report to or leaving a workplace because the employee has a reasonable belief that the workplace is unsafe.
The new law also prohibits an employer from preventing any employee from accessing their mobile device or other communications device to get emergency assistance, assess the safety of the situation or communicate with someone to verify their safety.
COVID-19-Related Laws
AB 2693 made several changes to the state’s COVID-19 notice requirements. Among other things, employers may now satisfy the notice requirements by prominently displaying a notice in the workplace of the potential exposure. The posted notice must contain the dates on which the COVID-19 case was at the worksite within the infectious period, and it must remain posted for 15 days.
AB 2693 also removes the requirement that employers report cases to their local health departments.
The COVID-19 notice requirements were set to expire on January 1, 2023, but AB 2693 extended the notice requirements to January 1, 2024.
In 2020, along with the COVID notice requirements, SB 1159 established a rebuttable workers’ compensation presumption for workers that contract COVID-19 under certain conditions and required employers to report COVID-19 cases to their workers’ compensation carriers. The presumption was originally set to expire on January 1, 2023, but AB 1751 extended the presumption an extra year to January 1, 2024.
The new year may also see a new version of the California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 regulation. As previously reported, the current COVID-19 Emergency Temporary Standard (ETS) will expire at the end of the year. Cal/OSHA is considering a new COVID-19 regulation with some significant changes from the ETS. The Occupational Safety and Health Standards Board is expected to vote on the regulation in November or December of this year.
Lastly, as previously reported, AB 152 extended employee’s eligibility to use 2022 COVID-19 Supplemental Paid Sick leave through December 31, 2022.
Privacy
Many of the amendments made by California Privacy Rights Act (CPRA) (formerly the California Consumer Privacy Act (CPPA)) take effect January 1, 2023. As previously reported, the expiration of the CPRA’s employment information exemption from most of the law’s requirements will notably affect all covered employers.
This means that, effective January 1, 2023, CPRA-covered employers will have new obligations for employee and job applicant personal information, including notice and disclosure requirements, and new obligations for employees to view, access, correct and delete their personal information. Covered employers should consult with their legal counsel to ensure they have compliant policies and procedures in place next year.
Industry-Specific Measures
Once again, California continued its practice of enacting employment laws specific to certain industries and sectors.
AB 257 will create the Fast Food Council within the Department of Industrial Relations, composed of 10 members appointed by the Governor, the Speaker of the Assembly and the Senate Rules Committee. The unelected Council will work to establish minimum wages, working hours and other working conditions for fast food restaurants.
California also passed new requirements for call center employers. AB 1601 requires an employer of customer service employees in a call center to follow the California Worker Adjustment and Retraining Act (Cal/WARN) requirements prior to relocating a call center to a foreign country. The law applies to call centers that employ, or have employed within the preceding 12 months, 75 or more persons.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
CalChamber employment law experts will cover the new employment laws for 2023 in more detail in the October issue of our HRCalifornia Extra newsletter (subscribe to HRCalifornia Extra) and in our annual new laws whitepaper (coming in November). Not a member? See how CalChamber can help you.
