At the end of the California legislative session, Governor Newsom signed a myriad of employment law bills, including Assembly Bill (AB) 2243, which requires Cal/OSHA to submit to the Occupational Safety and Health Standards Board a proposal to consider revising the heat illness standard and the wildfire smoke standard for farm workers to reduce the Air Quality Index (AQI) for PM2.5 to 301 or greater for the provision of respiratory protective equipment.

Under AB 2243, Cal/OSHA must submit to the board a rulemaking proposal before December 1, 2025. The bill was strongly opposed and remains controversial because it circumvents the normal rulemaking process.

These revisions come at a time when Cal/OSHA is considering an Indoor Heat Safety Standard and already has robust heat illness and wildfire smoke standards.  

Jackson Lewis will continue to monitor changes to workplace safety requirements and follow the rulemaking process as it proceeds.

If you have questions about the Heat Illness Prevention requirements or the Wildfire Smoke Standard, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

After vetoing a similar bill last year, on September 30, 2022, California Governor Newsom signed Senate Bill (SB) 951, which increases wage replacement rates for lower wage earners under the state Paid Family Leave program (PFL) and State Disability Insurance (SDI) programs.

Starting in 2025, workers who earn 70 percent or less than the state’s average wage would be eligible for 90 percent of their regular wages under the PFL and SDI programs. Currently, low-wage earners may be eligible for 70 percent of their regular wages under the programs.

Though PFL and SDI are state benefits, employees can apply for the benefits while on unpaid leaves, such as under the California Family Rights Act (CFRA) and Family Medical Leave Act (FMLA). As such, this increase in the state benefits formula may make unpaid leaves for lower wage earners more palatable as it will mean a less significant loss of income.

Earlier this year, California also started a grant program to assist small businesses with the costs associated with employees on leave under the Paid Family Leave program, e.g., expenses incurred in training existing staff or hiring temporary employees during employee leaves.

If you have questions about SB 951, Paid Family Leave, or related issues, contact a Jackson Lewis attorney to discuss.

Read more about the new laws affecting employers in California.

California Expands Who an Employee Can Care for Under the CFRA and California Paid Sick Leave Law

California Prohibits Retaliation Against Employees for Refusal to Report to Work During Emergency Conditions

Bereavement Leave Now Protected in California

California Passes New Requirements for Call Center Employers

COVID-19 Employee Notice Requirements Revamped and Extended Until 2024

Beginning January 1, 2023, employees throughout California will be able to use sick leave or take leave under the California Family Rights Act (CFRA) to care for a “designated person.”  Under Assembly Bill (AB) 1041, a designated person is defined as any individual related by blood or whose association with the employee is equivalent to a family relationship. An employee can designate this person at the time they request leave.  An employer can limit an employee to one person in a 12-month period as the employee’s designated person. 

Employers with employees working in locales with local paid sick leave ordinances will need to evaluate the need for revisions to policies and procedures. Some local paid sick ordinances already allow the use of sick leave to care for a designated person and provide a process for making such designations.   

If you have questions about the application of AB 1041 or related issues, contact a Jackson Lewis attorney to discuss.

On September 29,2022, California’s Governor Gavin Newsom signed Senate Bill (SB) 1044, which prohibits an employer in the event of an emergency condition from taking or threatening adverse action against any employee for refusing to report to, or leave a workplace or worksite within the affected areas because the employee has a reasonable belief that the workplace or worksite is unsafe.

SB 1044 also prohibits an employer from preventing any employee, including employees of public entities from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety.

SB 1044 requires an employee to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite. The bill clarifies that these provisions are not intended to apply when emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worksite, the worker, or the worker’s home have ceased.

Definition of Emergency Condition

An emergency condition is defined as either of the following:

  • Conditions of disaster or extreme peril to the safety of persons or property caused by natural forces or a criminal act.
  • An order to evacuate a workplace, worksite, or worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act.

The bill specifies that an emergency condition does not include a health pandemic.

Definition of a Reasonable Belief

A reasonable belief that the workplace or worksite is unsafe means that a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises. The existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations shall be a relevant factor if this information is known to the employee at the time of the emergency condition or if the employee received training on the health and safety regulations mandated by law specific to the emergency condition.

Notably, SB 1044 does not apply to the following:

  • First responders.
  • Disaster service workers.
  • An employee who is required by law to render aid or remain on the premises in case of an emergency.
  • An employee or contractor of a health care facility who provides direct patient care and provides services supporting patient care operations during an emergency or is required by law or policy to participate in emergency response or evacuation.
  • An employee of a private entity that contracts with the state or any city, county, or political subdivision of the state, including a special district, for purposes of providing or aiding in emergency services.
  • An employee working on a military base or in the defense industrial base sector.
  • An employee performing essential work on nuclear reactors or nuclear materials or waste.
  • An employee of a company providing utility, communications, energy, or roadside assistance while the employee is actively engaged in or is being called upon to aid in emergency response, including maintaining public access to services such as energy and water during the emergency.
  • An employee of a licensed residential care facility.
  • An employee of a depository institution.
  • A transportation employee participating directly in emergency evacuations during an active evacuation.
  • An employee of certain privately contracted private fire prevention resources.
  • An employee whose primary duties include assisting members of the public to evacuate in case of an emergency.

SB 1044 takes effect on January 1, 2023.

If you have questions about SB 1044, or related issues contact a Jackson Lewis attorney to discuss.

On September 29, 2022, California Governor Gavin Newsom signed Assembly Bill (AB) 1949, which amends the California Family Rights Act (CFRA) to require covered employers to provide eligible employees with 5 days of bereavement leave.

AB 1949 applies to employers with 5 or more employees nationwide. Under the bill, employees who have been employed at least 30 days before the leave may take 5 days of bereavement leave for the death of a family member. A family member is defined as including:

  • A spouse
  • A domestic partner
  • A child
  • A parent
  • A parent-in-law
  • A sibling
  • A grandparent
  • A grandchild

Bereavement leave is unpaid generally unless the employer has an existing policy that provides for paid leave or if the employee has accrued leave, including vacation time or sick leave that they elect to use.

Employers are permitted to request documentation of the death of the family member, which can include a death certificate, a published obituary, or a written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution or government agency.

Under the new legislation, employers are required to maintain the confidentiality of any employees requesting bereavement leave.

While AB 1949 amends the CFRA, the leave is separate from other leave offered to employees for their serious illness or to care for another with a serious illness.

This bill does not apply to an employee covered by a collective bargaining agreement if the agreement expressly provides:  (1) for bereavement leave equivalent to that required by the bill; (2) for the wages, hours of work, and working conditions of the employees; and (3) for premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent above the state minimum wage.

AB 1949 takes effect on January 1, 2023.

If you have questions about the application of AB 1949 or related issues, please contact a Jackson Lewis attorney to discuss.

On September 29, 2022, California passed Assembly Bill (AB) 1601, which requires an employer of customer service employees in a call center to comply with the California Worker Adjustment and Retraining Act (Cal/WARN) requirements prior to a mass layoff, relocation, or termination of employees. Under this bill, a call center employer is prohibited from ordering a relocation of its call center, or one or more of its facilities or operating units within a call center, unless the employer complies with the notice requirements.

Under the new law, “call centers” are defined as a facility or other operation where workers, as their primary function, receive telephone calls or other electronic communication for the purpose of providing customer service or other related functions. Also under the new law, “relocation of a call center” includes when the employer intends to move its call center, or one or more facilities or operating units within a call center to a foreign country.

The new law applies to employers who are defined as covered establishments under Cal/WARN, which includes an industrial or commercial facility that employs or has employed within the preceding 12 months, 75 or more persons, and operate a call center.

AB 1601 also requires the Employment Development Department (EDD) to compile and publish a list of employers that provide notice of relocation.

Employers on the list or should be on the list but failed to provide notice would be ineligible to be awarded or to have renewed state grants or state-guaranteed loans for five years after the date the list is published. Such employers would also be ineligible to claim tax credits for five taxable years as of the date the list is published unless ineligibility is waived by the commissioner for specified reasons.

The law is effective January 1, 2023.

If you have questions about the application of AB 1601 or related issues, please contact the Jackson Lewis attorney with whom you regularly work.

On September 29, 2022, California’s Governor signed Assembly Bill (AB) 2693, which amends and extends COVID-19 workplace notice requirements until January 1, 2024.

Under existing law adopted under AB 685, if an employer receives notice of potential exposure to COVID-19, the employer must provide written notice of the potential exposure within one business day to all employees who were at the worksite.  Originally, this notification requirement was set to expire on January 1, 2023.  AB 2693 extends this reporting requirement to January 1, 2024 and gives employers another option for complying with these notification requirements. 

As an alternative to providing written notice to employees, the employer may now prominently display a notice to alert employees to a potential COVID-19 exposure.  If an employer opts to use this notification route, it must comply with a series of technical requirements in the statute, including:

  • The notice must be displayed in all places where notices to employees concerning workplace rules or regulations are customarily posted.  If the employer posts workplace notices on an existing employee portal, this notice must also be posted on the employee portal. 
  • This notice must be posted within one business day from when the employer is notified of a potential COVID-19 exposure and must remain posted for not less than fifteen calendar days.
  • The notice must provide the following information:
  • The dates on which an employee, or employee of a subcontracted employer, with a confirmed case of COVID-19 was on the worksite premises within the infectious period;
  • The location of the exposures, including the department, floor, building, or other area (but this does not need to be so specific as to allow individual workers to be identified);
  • Contact information for employees to receive information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, as well as antiretaliation and antidiscrimination protections of the employee; and
  • Contact information for employees to receive the cleaning and disinfection plan the employer is implementing. 

Additionally, the employer must keep a log of all dates the notice required by this section was posted at each worksite of the employer and must allow the Labor Commissioner to access these records.

If you have questions about the application of AB 2693 to your business or related workplace safety and health issues, please contact the authors of this blog, your Jackson Lewis attorney, or a member of our Workplace Safety and Health team.

California has extended COVID-19 Supplemental Paid Sick Leave (SPSL) through December 31, 2022. On September 29, 2022, California’s Governor signed Assembly Bill (AB) 152 which amends the existing SPSL law and provides for state grants to certain employers.  

Changes to Supplemental Paid Sick Leave

The previous version of SPSL was passed in February 2022 and required employers with 26 or more employees to provide additional paid leave for certain COVID-19-related reasons.  This law was scheduled to expire on September 30, 2022. 

Under existing law, full-time employees receive one bank of up to 40 hours of leave that can be used for a variety of qualifying reasons.  A full-time employee can receive an additional bank of 40 hours of leave if they test positive for COVID or are caring for a covered family member who tests positive, and they produce proof of that positive test result. Part-time employees receive pro-rated banks based on formulas specified in the law.  Existing law also allows an employer to require submission to a diagnostic test on or after the fifth day an employee reports testing positive for COVID-19.  

AB 152 amends the existing SPSL law to permit additional testing if an employee continues to test positive after taking any test required on or after the fifth day.  Under the amended law, an employer can require that the employee submit to a second diagnostic test that is taken no earlier than at least 24 hours after any positive result on a test taken on or after the fifth day. The amended law also provides that an employer has no obligation to provide additional paid leave if an employee refuses to comply with the employer’s required return to work diagnostic tests. 

AB 152 also extends the availability of SPSL to December 31, 2022.  While SPSL will now be available through the end of the year, AB 152 does not provide an additional bank of time to those employees who may have already exhausted their allotted SPSL for the year. 

Grants for Small Business and Non-Profits

AB 152 establishes the California Small Business and Nonprofit COVID-19 Relief Grant Program within the Governor’s Office of Business and Economic Development, also known as GO-Biz to assist qualified small businesses or nonprofits that are incurring costs for COVID-19 supplemental paid sick leave. The bill requires GO-Biz to provide grants to qualified small businesses or nonprofits. These provisions of the bill will expire on January 1, 2024.

As an urgency bill, AB 152 takes effect immediately.

If you have questions about COVID-19 Supplemental Paid Sick Leave or related issues, contact a Jackson Lewis attorney to discuss.

California passed Assembly Bill (AB) 2089, which amends the Confidentiality of Medical Information Act (CMIA) to include mental health application information under the definition of medical information. Under the revisions to CMIA, mental health application information is defined as information related to a consumer’s inferred or diagnosed mental health or substance use disorder, as defined in Section 1374.72 of the Health and Safety Code, collected by a mental health digital service.  Similarly, “mental health digital service” is defined as a mobile-based application or internet website that collects mental health application information from a consumer, markets itself as facilitating mental health services to a consumer, and uses the information to facilitate mental health services to a consumer.

Read the full article on Jackson Lewis’s Workplace Privacy, Data Management & Security Report.