Update Your Handbooks and Other Policies in 2021

COVID-19

OSHA Emergency Temporary Standards:  The California Office of Administrative Law has formally approved the temporary standards prepared by Cal/OSHA regarding COVID-19 in the workplace.  The regulations are in effect as of November 30, 2020.  They will expire on October 2, 2021 unless extended.  In conjunction with the approval, Cal/OSHA released “Frequently Asked Questions” addressing and clarifying key requirements, as well as a short fact sheet and a model COVID-19 prevention program.

Significantly, the standards require employers to continue to pay and provide benefits from employees excluded from the workplace due to COVID-19 infection and exposure.

The regulations apply to all employers in California with 3 exceptions: (1) workplaces where there is only one employee who does not have contact with other people, (2) employees who are working at home, and (3) employees who are covered by the Aerosol Transmissible Diseases (“ATD”) regulations (i.e. healthcare workers, first responders, skilled nursing facilities, etc.).

To comply with the regulations, an employer must develop a written COVID-19 Prevention Program or ensure its elements are included in an existing Injury & Illness Prevention Program. The employer must implement the following in accordance with their written plan:

• Communication with employees about the employer’s COVID-19 prevention procedures.
• Identification, evaluation, and correction of COVID-19 hazards.
• Physical distancing of at least six feet unless it is not possible, in which case employees should be as far from others as possible.
• Use of face coverings, which employers must provide to employees (or reimburse employees for the cost), and ensure that they are worn.
• Use of engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk, such as partitions and disinfection protocols.
• Procedures to investigate and respond to COVID-19 cases in the workplace, including screening employees for and responding to employees with COVID-19 symptoms. Employers must give notice of potential COVID-19 exposures within one business day to all employees who may have been exposed, their authorized representatives, independent contractors, and other employers who were present during the high risk exposure period (generally 48 hours before onset of symptoms or positive test).
• Providing COVID-19 training to employees.
• Providing testing to employees who are exposed to a COVID-19 case (as specified by the regulations in detail depending on the number of cases), and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas.
• Excluding COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk (as specified by the regulations depending on nature of COVID-19 case or exposure).
• Maintaining records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required. Employers must report to the local health department within 48 hours of a COVID-19 outbreak at a worksite (generally three cases).

An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments. These obligations do not apply if an employer establishes the employee’s exposure was not work-related.

Employers must also be sure to communicate to employees methods for reporting COVID-19 symptoms, exposures, and hazards without fear of reprisal.

AB 685:  Beginning January 1, 2021, both private and public employers who receive notice of a potential exposure to COVID-19 must do all of the following within one business day:

• Provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the “qualifying individual” (a person who: 1) Has a laboratory-confirmed case of COVID-19; 2) Has a positive COVID-19 diagnosis from a licensed health care provider; 3) Has been ordered to isolate by a public health official due to COVID-19; or 4) Has died due to COVID-19) within the “infectious period” (definition subject to change and based on current definition as set forth by the Department of Public Health) that they may have been exposed to COVID-19.
• Provide written notice to any union of the employees above.
• Provide all employees who may have been exposed and any union of such employees with information regarding COVID-19-related benefits to which they may be entitled, including but not limited to worker’s compensation, COVID-19-related leave, and paid sick leave, as well as the employer’s anti-discrimination and anti-retaliation policies.
• Provide notice to all employees, the employers of subcontracted employees, and any union of such employees of the disinfection and safety plan that the employer plans to implement and complete, per CDC guidelines.

Notice should be provided in the manner normally used to communicate employment-related information and may include personal service, email, or text message.

Within 48 hours of learning of a COVID-19 outbreak, as defined by the Department of Public Health, employers must notify the local public health agency in the jurisdiction of their worksite of the names, number, occupation and worksite of “qualifying individuals,” as well as the employer’s business address

AB 1867: This bill codifies Governor Newsom’s Executive Order N-51-20, which provided supplemental paid sick leave to food sector employees of an employer with 500 or more employees in connection with the COVID-19 pandemic.  This bill extends COVID-19 Supplemental Paid Sick Leave to non-food sector employees.  COVID-19 Supplemental Paid Sick Leave is also expanded to health care employees and emergency responders who were not provided paid sick leave by their employers under the Families First Coronavirus Response Act (FFCRA).

The following are triggering events for an employee to be eligible for COVID-19 Supplemental Paid Sick Leave, if the employee is unable to work because:

• The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
• The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19;
• The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Being subject to the State of California’s general stay-at-home order does not mean that the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.  Eligible employees are entitled to paid sick leave based on whether they are considered full-time or part-time.

In connection with this supplemental leave, employers must comply with the notice and paystub requirement previously established under the California Healthy Workplaces, Healthy Families Act of 2014.  This means that an employer must provide an employee with written notice that sets forth the amount of paid sick leave available for use on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages.

Covered employers are required to provide COVID-19 Supplemental Paid Sick Leave until December 31, 2020, the same date that the FFCRA is set to expire.  Should the FFCRA be extended, COVID-19 Supplemental Paid Sick Leave will also be extended in accordance with the end date of the FFCRA.

AB 1867 also requires employees working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed.

SB 1159: This law codifies and supersedes Governor Newsom’s Executive Order N-62-20, which created a presumption that an employee’s illness related to COVID-19 is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria 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, if the positive test occurs on or after July 6, 2020, and the positive test occurred during a period of an “outbreak” at the workplace.  For purposes of this new law, an “outbreak” is when, within 14 days, any of the following occurs at a place of employment:

• The employer has 100 employees or fewer at a specific place of employment, and four employees test positive for COVID-19.
• The employer has more than 100 employees at a specific place of employment, and 4% of the workforce at that place test positive for COVID-19.
• A specific place of employment is ordered to closed because of COVID-19.

Employees must exhaust all available supplemental COVID-19 sick leave pay before receiving temporary disability benefits from the workers’ compensation carrier.

Additionally, employers with 5 or more employees must report certain information to their workers’ compensation carrier once they know or reasonably should know an employee has tested positive for COVID-19, assuming the employee has been onsite at an employer’s location in the 14 days prior to the employee testing positive (which is the day the employee took the test, not when the employee received the results).

The law also employers to retroactively report certain information about any positive test that occurred between July 6, 2020, and September 16, 2020.

EQUAL EMPLOYMENT OPPORTUNITY

AB 979:  This law requires that, no later than December 31, 2021, any publicly held domestic or foreign corporation whose principal executive office is located in California must have a minimum of one director from an underrepresented community, and, by December 31, 2022 calendar year, any California-based publicly held corporation with more than four but fewer than nine directors must have a minimum of two directors from underrepresented communities, and such a corporation with nine or more directors must have a minimum of three directors from underrepresented communities.  A “director from an underrepresented community” means an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.

AB 1947: This bill extends the period of time for employees who believe that they have been discharged or otherwise discriminated against in violation of any law enforced by the Labor Commissioner to file a complaint with the Division of Labor Standards Enforcement from six months to one year.  Additionally, courts are authorized to award reasonable attorney’s fees to a plaintiff who successfully brings a whistleblower action under Labor Code Section 1102.5.

SB 973: Under this law, California private employers with 100 or more employees are required to submit a pay data report to the Department of Fair Employment and Housing (DFEH) by no later than March 31, 2021, and annually thereafter.  Employers must collect aggregate W-2 earnings and report the number of employees in each of the 12 pay bands (spanning from $19,239 and under to $208,000 and over) for the 10 broad job categories (executive or senior-level officials and managers; first or mid-level officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers), and classify by race, sex and ethnicity.  Employers must also report total hours worked by each employee within a given pay band during the reporting year.  Employers with multiple establishments must submit a report for each establishment as well as a consolidated report that includes all employees.  The DFEH is authorized to oversee the collection of pay data and to share any information of alleged pay discrimination with the Division of Labor Standards Enforcement (DLSE) to coordinate enforcement.  The bill also requires the Employment Development Department to provide the DFEH, upon its request, with the names and addresses of all businesses with 100 or more employees and authorizes the DFEH to seek an order requiring non-reporting employers to comply with SB 973.

AB 2147: Under this law, certain individuals with criminal convictions who have been released from custody and completed the California Conservation Camp program are permitted to have their convictions expunged.  Individuals who have been convicted of certain crimes, including murder and rape, are automatically ineligible for this relief.

LEAVES

SB 1383: This law repeals the California New Parent Leave Act (NPLA) and California Family Rights Act (CFRA), and instead implements a new CFRA.  The most significant change in the law is that the new CFRA will be expanded to cover any employer with 5 or more employees.  Such employers will be required to grant employees up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.  Such employers will also be required to grant up to 12 workweeks of protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child or parent in the Armed Forces of the United States.

In order to be eligible under the new CFRA, the employee must have at least 1,250 hours of service with the employer during the previous 12-month period.  New CFRA leave continues to run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability because of pregnancy or childbirth.

An employer who employs both parents of a child must grant up to 12 weeks of leave to each employee.

AB 2399: Under this law, Paid Family Leave will include time off for participation in a qualifying exigency related to the active duty or call to active duty of an individual’s spouse, domestic partner, child or parent in the Armed Forces of the United States.

AB 2017: Provides that the designation of sick leave is at the sole discretion of the employee.

AB 2992: Existing law prohibits employers from discharging, discriminating, or retaliating against employees who are victims of domestic violence, sexual assault or stalking, for taking time off from work to obtain or attempt to obtain relief to help ensure the health, safety or welfare of the victim or victim’s child.  This law expands existing provisions to allow such employees to take time off from work to obtain or attempt to obtain relief which includes but is not limited to a temporary restraining order, restraining order or other injunctive relief to help ensure the health, safety, or welfare of the victim or their child.  Employers are prohibited from taking action against employees when an unscheduled absence occurs if employees provide certification that they were receiving services for certain injuries, or if the documentation is from a victim advocate.  A “victim” includes: a victim of stalking, domestic violence, or sexual assault; a victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury; or a person whose immediate family member is deceased as the direct result of a crime. “Immediate family member” is broadly defined to include “any other individual whose close association with the employee is the equivalent of a family relationship.”

For employers with 25 or more employees, the law prohibits the discharge of, or discrimination or retaliation against, employees who are victims and who need to take time off to seek medical attention for injuries caused by crime or abuse, obtain services from prescribed entities as a result of the crime or abuse, obtain psychological counseling or mental health services related to an experience of crime or abuse, or participate in safety planning and take other actions to increase safety from future crime or abuse.

OTHER

Minimum Wage: The minimum wage in California is increasing to $14.00 per hour on January 1, 2021, for employers with 26 or more employees.  The minimum wage for employers with 25 or fewer employees will increase to $13.00 per hour on January 1, 2021.  This will also affect minimum salaries required for exempt employees ($58,240 for employers with more than 25 employees and $54,080 for employers with 25 employees or less).

AB 3075:  This new law requires each party to the creation of a new corporation to attest under penalty of perjury that they have no outstanding final judgments issued to them for violations of any wage order or provision of the Labor Code.  Additionally, the law provides that whether a company is a “successor employer” for purposes of collecting a judgment based on a violation of the Labor Code is determined based on the existence of one or more of the following factors: (1) the company uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the predecessor employer, (2) it has substantially the same owners or managers that control the labor relations as the predecessor employer, (3) it employs as a managing agent any person who directly controlled the wages, hours or working conditions of the affected workforce of the predecessor employer, or (4) it operates a business in the same industry and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the predecessor employer.

AB 1867:  This law requires the DFEH to create a small employer family leave mediation pilot program which would authorize a small employer or the employee to request all parties to participate in mediation through the DFEH’s dispute resolution division after receiving a right-to-sue notice relating to leave rights.  If mediation is requested, the employee is prohibited from pursuing a civil action until the mediation is complete.

Proposition 24: On Election Day, voters passed Proposition 24, which is the California Privacy Rights Act of 2020 (CPRA).  This law expands the state’s existing privacy law, the California Consumer Privacy Act of 2018 (CCPA).  Most provisions of the CPRA go into effect on January 1, 2023.  The CPRA amends the CCPA’s definition of a covered “business” to apply if a business collects personal information on California consumers, does business in California and meets one of the following thresholds: (1) had an annual gross revenue in excess of $25 million in the preceding calendar year; or (2) buys, sells or shares the personal information of at least 100,000 California consumers or households; or (3) derives at least fifty percent of its annual revenue from selling or sharing consumers’ personal information.  The CPRA includes various regulations regarding personal information provided to employers by all applicants, employees, and independent contractors.

ERICA M. SOROSKY esorosky@ptwww.com (949) 851-7271	ERIN K. OYAMA eoyama@ptwww.com (949) 851-7288