It’s that time of year when we update you on upcoming changes to the employment law landscape and for you to take the opportunity to update your employee handbooks and policies.  Below we set forth the newly passed legislation that that takes effect January 1, 2023 that impacts employers.

Expansion of CFRA Leave for Designated Person

AB 1041 expands who an employee can take leave to care for under both the California Family Rights Act (CFRA) and California’s paid sick leave law. Beginning January 1, 2023, employees can take CFRA leave or paid sick leave to care for a “designated person.” In both instances, an employer may limit an employee to one designated person per 12-month period. The law defines this term to include any individual related by blood or whose association with the employee is the equivalent of a family relationship. An employee can identify a designated person at the time the employee requests CFRA leave.

Bereavement Leave

AB 1949 requires employers with five or more employees to allow employees to take up to five days of bereavement leave upon the death of a family member, including a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law. This leave may be unpaid, but employees can use their existing available leave (e.g., vacation, PTO, sick leave, etc.). Employers can require documentation to support the leave, and the leave must be completed within three months of the family member’s death.

New Pay Transparency Law

SB 1162 will require employers to make pay scale information available to job applicants and employees and also expands California’s pay data reporting requirements. The new law mandates that employers upon request must provide pay scale information to an employee for the position the employee is working. Moreover, employers with 15 or more employees must include pay scale information for a position in any job posting. SB 1162 also expands employers pay data reporting requirements for employers with 100 or more employees including the reporting of the number of employees by race, ethnicity and sex by job title categories and pay bands. California employers must also report the median and mean hourly rate within each job category, for each combination of race, ethnicity and sex in the report.

Workplace Safety

SB 1044 prohibits an employer, in the event of an “emergency condition” as defined in the law, from taking or threatening adverse action against the employee for refusing to report to or leaving a workplace because the employee has a reasonable belief that the workplace is unsafe.

The new law also prohibits an employer from preventing any employee from accessing their mobile device or other communications device to get emergency assistance, assess the safety of the situation or communicate with someone to verify their safety.

COVID-19-Related Laws

AB 2693 made several changes to the state’s COVID-19 notice requirements. Among other things, employers may now satisfy the notice requirements by prominently displaying a notice in the workplace of the potential exposure. The posted notice must contain the dates on which the COVID-19 case was at the worksite within the infectious period, and it must remain posted for 15 days.

 AB 2693 also removes the requirement that employers report cases to their local health departments.

The COVID-19 notice requirements were set to expire on January 1, 2023, but AB 2693 extended the notice requirements to January 1, 2024.

In 2020, along with the COVID notice requirements, SB 1159 established a rebuttable workers’ compensation presumption for workers that contract COVID-19 under certain conditions and required employers to report COVID-19 cases to their workers’ compensation carriers. The presumption was originally set to expire on January 1, 2023, but AB 1751 extended the presumption an extra year to January 1, 2024.

Privacy

Many of the amendments made by California Privacy Rights Act (CPRA) (formerly the California Consumer Privacy Act (CCPA)) take effect January 1, 2023. CPRA-covered employers (with annual gross revenues of $25 million or derives 50% or more of its revenues from sharing or selling personal information) will have new obligations for employee and job applicant personal information, including notice and disclosure requirements, and new obligations for employees to view, access, correct and delete their personal information. Covered employers should consult with their legal counsel to ensure they have compliant policies and procedures in place for next year.

Discrimination

Two new laws will expand the scope of California’s Fair Employment and Housing Act (FEHA).

First, AB 2188, which does not come into effect until January 1, 2024, adds cannabis protection to the state’s discrimination law. Specifically, employers will be prohibited from discriminating against an employee or job applicant based on the person’s use of cannabis off the job and away from the workplace. Employers may still conduct preemployment drug testing and refuse to hire someone based on a valid preemployment drug screening that doesn’t screen for non-psychoactive cannabis metabolites.

The new law also doesn’t permit an employee to possess, be impaired by or use cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace.

SB 523, among other things, amends the FEHA to make it unlawful to discriminate against an employee or job applicant based on their “reproductive health decision-making.”  Reproductive health decision-making includes, but is not limited to, a decision to use or access a particular drug, device, product or medical service for reproductive health.

Industry-Specific Measures

Once again, California continued its practice of enacting employment laws specific to certain industries and sectors. 

AB 257 will create the Fast Food Council within the Department of Industrial Relations, composed of 10 members appointed by the Governor, the Speaker of the Assembly and the Senate Rules Committee. The unelected Council will work to establish minimum wages, working hours and other working conditions for fast food restaurants.

California also passed new requirements for call center employers. AB 1601 requires an employer of customer service employees in a call center to follow the California Worker Adjustment and Retraining Notification Act (Cal/WARN) requirements prior to relocating a call center to a foreign country. The law applies to call centers that employ, or have employed within the preceding 12 months, 75 or more persons.

Should you have any questions regarding any of the new laws, or would like your employee handbook updated to reflect these new changes to employment laws, contact our employment attorney Scott Liner at [email protected].