California is Scary – Recently Passed California Laws Give California Employers Another Fear (aka Legal Duties) | Akerman LLP – HR Defense

Just in time for Halloween and employee handbook update season, the California Legislature passed a flurry of new labor laws that are sure to give employers compliance nightmares. From expanding the concept of “family” leave, to more time to take that additional paid COVID-19 leave, protections against discrimination in cannabis use and reproductive health decisions, pay transparency and greater workplace safety rights, California employers’ failure to keep pace it can be scary with these changes! Here’s what employers need to know to avoid the horror show in the future.

Leaves of absence

Expanding who is entitled to care for relatives. The ever-expanding California Family Rights Act (CFRA), among other things, allows an employee to take protected leave to care for an ill family member. Recent amendments to CFRA have expanded this definition to include grandparents, grandchildren, siblings, children of any age, and in-laws. AB 1404 takes CFRA a step further by expanding its scope to include a “specified person,” meaning any person related by blood or whose connection to the employee is equivalent to a family relationship.

AB 1404 also expands the definition of “family member” under the California Paid Sick Leave Act, Healthy Workplaces and Healthy Families Act of 2014 to include a “designated person.” The definition of “identified person” is broad and includes anyone identified by the employee at the time the employee applies for paid sick days.

Death leave. AB 1494 also amends CFRA to provide 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, domestic partner or in-law. The employer may not require the leave to be taken consecutively, but may require that the leave be taken within three months of the date of death of a family member.

Extension of entitlements to additional paid COVID leave (effective September 29, 2022)

AB 152 extends an employee’s right to take additional paid COVID-19 leave (which would otherwise end on September 30, 2022) to December 31, 2022. This law does not require employers to provide New paid leave in addition to the previously required additional paid COVID-19 leave, but only extends the period during which the employee may take such paid leave.

Discrimination in employment

Cannabis protection. AB 2188, which takes effect on January 1, 2024, prohibits employers from discriminating against applicants or employees for off-duty and off-site use of cannabis. Additionally, the law prohibits employers from taking action against an employee based on a drug test that revealed non-psychoactive cannabis. metabolites. Such conduct is now discrimination in violation of the Fair Employment and Housing Act (FEHA). This law is intended to promote the use of tests for detection THC (which can mean damage) as opposed to metabolites (which do not indicate damage and can remain in an individual’s system for weeks). The law does not apply to employees in the construction or construction industry or to positions that require a federal government investigation or security clearance.

Reproductive health

SB 523 under FEHA, it is illegal to discriminate against applicants or employees based on their reproductive health decisions. “Reproductive health decision making” includes decisions about the use of or access to a particular reproductive health drug, device, product, or medical service. The definition of “sex” under the FEHA may include reproductive health decisions. An employer may not require an employee or applicant to disclose information related to their reproductive health decisions.

SB 523 also amends the California Government Code to require, effective January 1, 2024, that health benefit plans or contracts provide coverage for 1) contraception and related services in accordance with the requirements of Section 1367.25 of the Health and Safety Code and Section 10123.196 of the Insurance Code; and 2) vasectomy and related services in accordance with the requirements of § 1367.255 of the Health and Safety Code and § 10123.1945 of the Insurance Code.

Payment transparency/payment data and capital

Current California law requires an employer to provide an applicant with the salary scale of the position upon request. As mentioned in our blog last week, SB 1162 extends the current legislation to, among other new obligations, require the employer to provide such information to the employee for the position the employee holds. An injured employee can file a complaint with the labor commissioner or file a civil lawsuit.

Workplace safety

SB 1044 prohibits employers from taking or threatening adverse action against an employee for refusing to report to or leaving the workplace because of a “reasonable belief” that the workplace is unsafe due to an “emergency.” SB 1044 also prohibits an employer from preventing an employee from accessing an employee’s mobile device or other communication device to seek emergency assistance, assess the safety of a situation, or communicate with a person to verify their safety. State of Emergency” means the existence of: (i) conditions of disaster or extreme threat to the safety of persons or property at the workplace or workplace caused by natural forces or criminal activity; or (ii) an order to evacuate the workplace, the workplace, the worker’s home, or the worker’s child’s school as a result of a natural disaster or crime. “Emergency” does not include a health pandemic. An employee’s belief is “reasonable” if a reasonable person, under circumstances known to the employee at the time, would conclude that there is a real risk of death or serious bodily injury if the person enters or remains in the workplace. Although violations of this statute may be grounds for action under the Private Attorneys Act (PAGA), the legislation expressly provides an employer with a right to relief under Labor Code § 2699.3.

Note: this is just a scary look at new legislation affecting California employers, not a comprehensive summary. Employers should work with their Akerman attorneys to ensure policies and procedures are current and compliant with these new laws.


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