As we all happily bid 2020 “good riddance” and enter 2021 with much-needed optimism, there are a host of recent employment laws, some in response to the COVID-19 Pandemic, that California employers need to comply with. If you failed to keep up with the changes as 2020 came to an end, this handy checklist -- and our complimentary webinar, A New Hope: COVID-19 Vaccines in the Workplace and other Employment Law Developments for 2021 -- are for you.
COVID-19 Presumptions and Reporting Requirements
As we previously reported, SB 1159 codified Governor Newsom's May 2020 Executive Order creating a rebuttable presumption that in certain circumstances an employee's COVID-19-related illness diagnosed between March 20 and July 5, 2020, arose out of the course of employment and, as a result, is covered by workers' compensation benefits.
SB 1159, enacted September 17, 2020, picks up where the Executive Order left off. The new law specifically applies this rebuttable presumption to two categories of workers in the state. The first category is First Responders and Health Care Workers and includes firefighters, certain peace officers, paramedics and emergency medical technicians, and employees of designated health facilities.
The second category of workers covered by SB 1159 are those that are protected by the “Outbreak Presumption” which is triggered when employees whose employers have 5 or more employees test positive for COVID-19 during an Outbreak at their workplace. An “Outbreak” occurs within 14 days of one of the following occurring at a workplace:
- For employers who have 100 or fewer employees at a workplace, 4 employees test positive for COVID-19.
- For employers who have more than 100 employees at a workplace, 4% of the employees who report to that workplace have tested positive for COVID-19.
- A specific workplace is ordered to close by a local health department, the state department of public health, CalOsha, or a school superintendent due to a risk of infection of COVID-19.
Similar to its Executive Order predecessor, a “place of employment” for SB 1159 does not include an employee's residence; employees must work at the place of employment in response to their employer's direction. In addition, employees must exhaust all COVID-related sick leave benefits in order to be eligible for workers' compensation benefits which include “full hospital, surgical, medical treatment, disability indemnity and death benefits.” New additions to this law include a specification that an acceptable “test” is a PCR (Polymerase Chain Reaction) test or other test approved by the FDA. But note that SB 1159 excludes antibody or serological testing from the list of acceptable tests to establish an injury.
Importantly, SB 1159 includes a strict reporting requirement. All employers who know (or reasonably should know) that an employee has tested positive for COVID-19 must report to their workers' compensation claim administrator within 3 business days the following information:
- A written statement that an employee has tested positive for COVID-19. Employers are cautioned not to provide identifying information of the employee unless the employee claims the infection is work-related or has already filed a claim for benefits;
- The date the employee tested positive;
- The address of the employee's specific place of employment during the 14 days preceding the positive test result; and
- The highest number of employees that worked at the employee's specific place of employment in the 45-day period preceding the last day the employee worked there.
- An employer that provides false or misleading information or fails to make a required report at all can be subject to a civil penalty up to $10,000.00.
The Legislature enacted this law because “As COVID-19 continues to ravage California, one of the best tools available for limiting exposure and minimizing spread is to gather thorough and accurate information.” As a result, AB 685 requires employers who receive a “Notice” of potential exposure to COVID-19 at the workplace to provide notices to the following:
Employees at the Worksite: Within 1 business day of receiving the “Notice”, employers must notify all employees who were present at the worksite when a “Qualifying Individual” (defined as a person who has either been diagnosed with COVID-19 or received a COVID-19-related order by a public health official to isolate) was also present that they may have been exposed to COVID-19. This notice must be in writing, in the language understood by the majority of employees, and can be sent in the same manner that the employer normally uses to communicate employment-related information. It must also include information about any COVID-19-related leave benefits available to the exposed employees under federal, state or local laws as well as the steps the employer is taking to disinfect the worksite and implement a safety plan following CDC guidelines.
Public Health Authorities: Within 48 hours of receiving “Notice” of a COVID-19 “Outbreak” at the worksite, employers must notify the public health agency in the jurisdiction where the worksite is located of the Outbreak. This notice must contain the following information: (i) the names, numbers, occupations and worksite of employees who are part of the Outbreak and (ii) the business address and the NAICS code of the worksite where diagnosed individuals work.
For purposes of AB 685, “Notice” that triggers the reporting requirements includes: (i) notification from a public health official or licensed medical provider that an employee was exposed to a Qualifying Individual; (ii) notification to the employer that an employee is a Qualifying Individual; and (iii) notification through a testing protocol that a person is a Qualifying Individual.
An Outbreak under AB 685 is currently defined by the California Department of Public Health (CDPH) as 3 lab-confirmed cases within two weeks. Employers should be cautioned that this is different than the definition of Outbreak in SB 1159 which doesn't trigger reporting requirements unless 4 employees of an employer of less than 100 people test positive for COVID-19 or 4% of employees test positive who work for an employer with more than 100 employees. As of the writing of this Alert, there has been no indication that the two laws will be reconciled through further legislation.
Employers must maintain records of the “written notifications” under this new law for at least three years and failure to comply with the law can result in citations and civil penalties.
FFCRA Not Extended into 2021
The mandatory paid leave requirements in the federal Families First Corona Virus Response Act (“FFCRA”) were not extended past the Act's sunset date of December 31, 2020. Rather, employers can now decide if their company will continue to provide paid sick leave under the terms of the FFCRA and, if they do, they will continue to be eligible for the FFCRA's payroll tax credit up until March 31, 2021. Although no longer required to provide the paid leave, the FFCRA's qualifying reasons for the leave, the caps it imposed on the amount of pay employees are entitled to receive, and its documentation requirements – all remain the same.
Entertainment Work Permits for Minors -AB 3175
While “age-eligible minors” (those between 14 and 17 years old) and their parents or guardians were required to complete the state's mandated sexual harassment training prior to the issuance of an entertainment work permit, AB 3175 now requires that the parent or guardian of the age-eligible minor provide a certification to the Labor Commissioner that they and the minor have completed the harassment training in order to obtain the entertainment work permit. The training can be taken online through the Department of Fair Employment and Housing's website and it must be in a language understood by the participants.
Leaves of Absence
Perhaps the most noteworthy non-COVID employment law for 2021 is AB 1383 which significantly expands the California Family Rights Act (CFRA). By way of background, the CFRA mandates that employees who have worked at least 1,250 hours during the previous 12-month period, be permitted to take 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, a child, a parent, or a spouse. AB 1383 expands the CFRA requirements in the following ways:
- The CFRA requirements now apply to employers with 5 or more employees, a significant change from the previous application to employers with 50 or more employees. This effectively eliminates the New Parent Leave Act (the “NPLA”) that had the same unpaid protected leave for parental baby-bonding, but applied to employers with 20 or more employees. The NPLA leave requirements are now folded into the CFRA.
- If an employer employs both parents, they must now both be given the leave option for the full 12 workweeks if requested; and
- The definition of “family member” now also includes a permitted leave to care for grandparents, grandchildren, siblings, or domestic partners.
- Workers' Claims and Liability
This law extends the time for workers to file complaints of discrimination or retaliation with the Labor Commissioner from six months to one year from the date of the occurrence.
Effective January 1, 2021, this law makes a successor employer liable for its predecessor's unpaid wage judgments so long as the successor employer meets any one of the following criteria: (i) uses substantially the same facility or work force to offer the same services as its predecessor; (ii) has substantially the same owners or managers as its predecessor; (iii) employs the same managing agent (as defined in Section 3294 of the Civil Code) as its predecessor who directly controls the wages, hours or working conditions of the workforce; or (iv) operates a business in the same industry which is either owned or controlled by an immediate family member of its predecessor.
Also, beginning January 1, 2022 (or once the California Secretary of State certifies that its new Business Connect platform is implemented—whichever occurs first) this law will require that business entities filing Statements of Information with the California Secretary of State must include a statement whether any officer, director, or a LLC manager or member has an outstanding final judgment for the violation of any wage order or other provision of the Labor Code which is not subject to an appeal.
Pay Data Reports
SB 973 requires that starting March 31, 2021, employers with 100 or more employees must submit an annual pay data report to the Department of Fair Employment and Housing (“DFEH”). The purpose of this report is to address the state's wage discrimination issues and requires information regarding wages tied to race, ethnicity, and sex. This law also authorizes the DFEH to “receive, investigate, conciliate, mediate, and prosecute complaints alleging practices unlawful under current discriminatory wage rate provisions.”
Corporate Board Requirements: AB 979
This law builds on SB 826 from 2018 which requires that publicly held corporations with principal executive offices in California have a minimum number of female directors on their boards. AB 979 requires these same corporations to have a minimum of one director from an “Underrepresented Community” no later than December 31, 2021. A “Director from an Underrepresented Community” is defined as a person who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islanders, Native American, Native Hawaiian, Alaskan Native or who self-identifies as gay, lesbian, bisexual or transgender.
This bill also requires that by the close of the 2022 calendar year, covered corporations that have more than 4 and fewer than 9 directors have a minimum of 2 directors from Underrepresented Communities; and covered corporations with 9 or more directors have a minimum of 3 directors from Underrepresented Communities.
Failure to comply with this law carries penalties that can range between $100,000 for a first violation to $300,000 for all subsequent violations.
It just wouldn't be a Frankfurt Kurnit Employment Law Alert without some mention of AB 5 and California's ever-evolving independent contractor law. As previously reported, in September 2020, AB 2257 was enacted and it expanded the workers eligible for exemptions under AB 5's ABC Test. It is now easier for music professionals such as recording artists, musicians, composers and songwriters to qualify for exemptions as well as freelance writers, comedians, still photographers, and photojournalists.
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Originally Published by Frankfurt Kurnit, January 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.