New Laws on the Horizon for California Employers as Governor Signs COVID-19 Supplemental Sick Leave

Employment Law

On September 9, Governor Newsom signed into law AB 1867 which is effective immediately and codifies Executive Order N-51-20 related to sick leave for food sector workers, and establishes supplemental paid sick leave for certain workers not covered by the Families First Coronavirus Response Act (FFCRA), i.e. businesses of 500 or more employees, as well as requiring leave for certain emergency responders and healthcare providers, which were exempted from the FFCRA.  The law provides immediate access to up 80 hours of COVID-19 paid sick leave for the following more limited set of circumstances:

(A) The worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19; or
(B) The worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or
(C) The worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Notably, the law requires payment at the higher of the local minimum wage, the state minimum wage, or the regular rate, for all reasons specified in the statute, up to a total of  $5,110/per employee.  An employer who provided leave for one of these specified reasons prior to the effective date, but at a rate lower than specified, may retroactively compensate employees for the pay differential.  The law provides entities a credit if they have provided leave for specified reasons in accordance with the executive order, or in accordance with requirements of federal law or any local ordinance. These provisions will sunset on December 30, 2020.  The Labor Commissioner is ordered to provide a model notice to post in the workplace or distribute electronically to employees no later than September 16, 2020.

Additionally, the law adds Section 12945.21 to the Government Code to permit a small employer (of five to 19 employees), or employees of such employers, the right to request a mediation within 30 days of an employee’s receipt of a right-to-sue notice from the Department of Fair Employment and Housing. The statute of limitations for the employee would be tolled upon receipt of a request to participate in mediation.  The pilot program will sunset on January 1, 2024.

Further, as a follow-up to our article last week, available here, Governor Newsom signed into law AB 2257 on September 4, which modifies the existing tests for independent contractor status under AB 5. Governor Newsom has also signed into law AB 3364, which clarifies that the Fair Employment and Housing Act protects military or veteran status, as opposed to requiring that the individual employee have both statuses.

The Governor has until September 30 to sign any of the following bills also passed by the California legislature this session.  Our team will keep you updated on further developments.

AB 3216: Right to Recall/Right of Retention

On the last day of the legislative session, California lawmakers passed Assembly Bill 3216, which adds Labor Code Section 2810.8 and would establish recall and retention rights for laid-off employees in specified industries, including hotels, private clubs, event centers, airport hospitality operations and airport service providers, and those providing building services such as janitorial, building maintenance or security services. California employers must follow specific procedures and timelines for employees who have been laid off by providing notification in writing by mail, email and text message of all job positions for which the laid-off employees are qualified that become available after the bill’s effective date.

The bill would define the term “laid-off employee” to mean any employee who was employed by the employer for six months or more in the 12 months preceding the state of emergency giving rise to the application of the bill’s provisions, and whose most recent separation from active service was due to a public health directive, a government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason related to the state of emergency.

The bill would also impose requirements on successor-employers (for instance, if there were a change in control wherein the company’s assets were acquired or merged with an entity that conducts the same or similar operations, or the employer relocated its operations, resulting in layoffs). The prior employer is mandated to provide certain information to the successor employer, and the successor employer is mandated to maintain a preferential hiring list of eligible employees for a period of six months after the change in control. Further, the successor employer must retain for a period of 90 days eligible employees who were rehired under this bill, unless the employer has “cause” for terminating such employees.

The provisions of this bill apply to public health emergencies and other states of emergency declared by the Governor. This bill contains no sunset provisions.

Notably, the bill provides no private right of action, and instead is enforced exclusively through a complaint filed with the Division of Labor Standards Enforcement (DLSE), through which employees may be able to seek reinstatement, front or back pay, and the value of any benefits the employee would have received under the applicable employer benefit plan.

AB 2017: Designation of Sick Leave

This bill mandates that the designation of sick leave taken for reasons specified under California’s paid sick leave law shall be made at the sole discretion of the employee.

SB 1159: Workers’ Compensation: COVID-19: Critical Workers

This would codify the Governor’s prior orders, which have since expired, that created a rebuttable presumption that an employee who tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment has suffered a compensable injury. The bill also describes various mechanisms for rebutting the presumption, including that the employer took measures to reduce transmission of COVID-19 in the employee’s place of employment. This bill would sunset in January 2023.

AB 2992: Time Off for Victims of Crimes

Existing law prohibits discrimination or retaliation against employees who take time off if they are victims of specified crimes, including sexual assault or domestic violence. This bill would revise the categories of time off work under these circumstances to include taking time off work to seek medical attention for injuries caused by crime or abuse, to obtain services from prescribed entities as a result of the crime or abuse, to obtain psychological counseling or mental health services related to an experience of crime or abuse, or to participate in safety planning and take other actions to increase safety from future crime or abuse.

AB 685: COVID-19 Reporting

This bill would require that employers provide written notice to employees, within one business day, to all employees at the worksite regarding their potential exposure to COVID-19, and require that employers provide benefits-related information to employees at that time, including available sick leave or workers’ compensation information.

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