Part 1: Important 2022/2023 Legal Updates for California
This year was a busy year for the California Legislature and after a relatively quiet year in 2021, the Legislature sent many bills to the Governor’s desk. The Governor had until September 30th to sign or veto them and with that deadline behind us, we now know what employers will be facing.
Here is a recap of some of the employment bills of particular interest to employers that were passed in this legislative session.
AB 152: COVID-19 Supplemental Paid Sick Leave Extension
This law, which applies to employers who have 26 or more employees, extends the amount of time employees can use their remaining COVID Supplemental Paid Sick Leave (SPSL) from September 30th, 2022 until December 31st, 2022. It does not grant a new bank of hours.
A new poster has been issued and employers are required to inform employees of their rights and post it where employees can see it.
Last Friday, our COVID Update Series provided employers with a timely update on this new development. Check it out for more information on the new law including how your business may be eligible for a new grant created by AB 152 through the California Small Business and Nonprofit Relief Grant Program if you paid out COVID SPSL between January 1, 2022, and December, 30th, 2022.
AB 2693: COVID-19 Exposure Notice Requirements
Under existing law, employers are required to provide written notice to employees who may have been exposed to COVID in the workplace. AB 2693 allows employers to satisfy the notice requirement by posting a notice within one business day of being informed of the positive COVID case in all places where other notices to employees about workplace rules or regulations are already posted. The notice must also be posted on an employee’s existing employee portal if they have one. Employers must keep a log of the dates these notices were posted.
The exposure notice should include the information listed below and must remain posted for 15 days.
- The dates on which an employee or contractor with a confirmed case of COVID-19 was at the workplace within the infectious period.
- The location of the exposure (without information that would identify the infected person).
- Contact information for employees to receive information regarding available COVID-19 benefits.
- Contact information for employees to receive the employer’s cleaning and disinfection plan.
Employers may choose to provide a written notice to employees instead of posting it by using the method the employer normally uses to communicate employment-related information. This may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated the employee will receive it within one business day of it being sent.
This new law removes the requirement that employers must notify the local public health agency within 48 hours of a COVID ‘outbreak’ at the workplace. Local departments of public health may still require this notification therefore, employers should check their local requirements as well.
This law also extends the period in which employers must provide notices of exposure from January 1, 2023, to January 1, 2024.
SB 1162: Pay Transparency and Pay Data Reporting
California employers are currently not allowed to ask applicants about their pay history and SB 1162 expands pay-related requirements effective January 1, 2023. The provisions of this new law include the following:
- Employers with 15 or more employees must include the pay scale in any California job posting. Pay scale is defined as the “salary or hourly wage range that the employer reasonably expects to pay for the position.”
- All employers must provide the pay scale to a current employee for their position when they request this information.
- Requires all employers with 100 or more employees to include pay data reports to the California Civil Rights Department regardless of whether they are required to submit an EEO-1 report to the EEOC. These pay data reports are due annually on the second Wednesday in May beginning on May 10th, 2023.
- Pay data information must include the median and mean hourly rate within each job category and for each combination of race, ethnicity, and sex.
- Employers with 100 or more employees hired through labor contractors must also submit a separate pay date report covering these employees.
AB 1041: Leaves – ‘Designated Person’
AB 1041 is effective January 1, 2023, and amends the California Family Rights Act (CFRA) and the Healthy Workplaces, Health Families Act of 2014 (HWHFA) to expand the definition of a family member with a serious health condition who the employee may need to care for to include a ‘designated person’. The law defines a designated person differently under CFRA than under HWHFA.
Under CFRA, a designated person means any person related by blood or whose association with the employee is the equivalent of a family relationship. The employee can identify the designated person at the time they request the leave. CFRA applies when an employer has 5 or more employees. An employee is eligible when they have worked for the employer for more than 12 months and have worked at least 1250 hours for that employer in the 12-month time frame before the leave begins.
Under HWHFA, which is the California law that requires employers to offer paid sick leave, a designated person is someone identified by the employee at the time the employee requests paid sick days. This means that the person does not have to be related by blood or be the equivalent of a family relationship. Unless further guidance is issued from the Labor Commissioner, this could mean a designated person might be a roommate, a next-door neighbor, a friend, etc.
In these situations, the employer can limit the employee to using paid sick leave or leave under CFRA to one designated person per 12-month period.
SB 1044: Emergency Conditions – Retaliation Prohibited
SB 1044 is effective January 1, 2023, and prohibits any employer from retaliating against an employee for refusing to report to work or for leaving work because the employee has a reasonable belief that the workplace is unsafe. In order for the workplace to be deemed unsafe, a reasonable person would conclude there is a real danger of death or serious injury if the person enters or remains on the premises. SB 1044 also prohibits an employer from preventing an employee from using the employee’s mobile device for seeking emergency assistance, assessing the safety of the situation, or checking on the safety of another person. This law does not apply when the emergency conditions have ended.
The employee is required to notify the employer of the emergency condition requiring them to leave or refuse to report to the workplace.
An emergency condition is defined as conditions of disaster or extreme danger for the safety of people or property at the workplace caused by natural forces or a criminal act or an order to evaluate a workplace, an employee’s home, or a child’s school due to these same reasons. The law specifically states that an emergency condition does not include a health pandemic.
AB 1949 is effective January 1, 2023, and allows employees of employers with five or more employees to take up to five days of bereavement leave under the California Family Rights Act (CFRA). An employee is eligible if they have been employed for at least 30 days prior to the leave. The leave can be used for the death of a spouse, domestic partner, child, parent, sibling, grandparent, grandchild, or parent-in-law.
The five days of bereavement leave do not have to be consecutive and can be used within three months of the date of the death of the family member. The leave can be unpaid, but the employee must be allowed to use vacation, personal leave, accrued and available sick leave, or compensatory time off they may have available.
Employers may request documentation from the employee within 30 days which could consist of a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.
AB 2188: Off the Job Cannabis Protection
AB 2188 is not effective until January 1, 2024. This law makes it illegal to discriminate against employees who use cannabis off the job and away from the workplace. Employees do not have the right to be impaired at work and employers may administer a performance-based impairment test and terminate an employee who is impaired by cannabis while at their workplace. The law does not apply to the building and construction trades and does not preempt state or federal laws requiring employees to be tested.
Please note, the above is not an inclusive list of all the laws, only those most relevant to our clients. We will follow with a Part Duo of miscellaneous laws in the coming weeks. Stay tuned!
Understanding how these various laws affect the workplace is crucial for employers and employees alike. An important step for organizations to take is updating their employee handbook for 2023. Our team of HR consultants is available to assist with handbook updates and questions regarding new laws. Contact us for more information.
About the Author
Traci Hagan, “Treasure Trove”
Traci is an HR Consultant who has been with SDHRC for over 4 years but has over 32 years of experience in employee relations, conflict resolution benefits administration, training and development, workers’ comp, and staffing. Traci’s experiences encompass multi-organizational and cross-cultural issues which allow her to expertly charter the waters of complex problems and where she thrives by discovering and providing solutions for smoother sailing.