7 Legislative Issues for California Employers to Watch

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California legislators have until the end of August to approve bills for this session, and Gov. Gavin Newsom has until Sept. 30 to sign them into law. As in prior years, employers should note that many proposals would impact the workplace.

"The primary theme by far with respect to workplace legislation is the COVID-19 pandemic," said Charles Thompson, an attorney with Ogletree Deakins in San Francisco. For example, one bill would expand the statewide paid-sick-leave mandate by requiring employers to provide three additional days of paid leave for coronavirus-related reasons. Another bill would require employers in certain industries—such as hotels, airport hospitality services and building services—to recall laid-off employees in order of seniority. Other bills would create a presumption that employees contracted COVID-19 at the workplace.

Nearly all of the COVID-19-related bills impose new requirements on employers, noted Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento. Unlike the federal Families First Coronavirus Response Act, which provides paid leave to employees and tax credits to employers, "the California bills put these obligations 100 percent on the backs of employers," he said. "Unfortunately, we see nothing in terms of relief for struggling businesses in California."

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In addition to pandemic-related proposals, Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego, noted that employers should look out for amendments to California's controversial AB 5, which codified a stringent test for classifying workers in the state as independent contractors.

Here are the top legislative issues employers in the Golden State should follow.

1. Expanded Emergency Leave

Under AB 3216, employees would be eligible to take up to 12 weeks of job-protected, unpaid family and medical leave—which would run concurrently with time off under the federal Family and Medical Leave Act—during any 12-month period "due to a qualifying exigency related to the covered public health emergency or state of emergency." The bill would also provide workers with an additional 24 hours (or three days) of emergency paid sick leave for specific reasons during a public health emergency.

AB 3216 would also require employers in certain hospitality industries to offer workers who were laid off during a public health emergency their prior position or another position for which they are qualified when one becomes available.

SB 729 would require employers to provide supplemental paid sick leave to food-sector workers during the COVID-19 crisis as well as during other emergencies.

2. Workers' Compensation During the COVID-19 Crisis

"A handful of other proposed bills would affect presumptions and burdens of proof in establishing workers' compensation claims and benefits for industries heavily impacted by the coronavirus response," Ebbink said. Two bills (AB 664 and AB 196) would create a "conclusive presumption" that certain essential workers who become ill with COVID-19 were exposed to the coronavirus at work. SB 1159 would create a "rebuttable presumption," which would give employers the opportunity to show that the exposure was not work related.

3. Notifications About Employee Exposure to COVID-19

AB 685 would require employers to notify their employees, the California Division of Occupational Safety and Health—which is known as Cal/OSHA—and the California Department of Public Health of any employee exposure to COVID-19 that the employer knew about or should have known about.

4. Expanding the CFRA to Cover More Employers

The California Family Rights Act (CFRA) currently applies to employers with 50 or more employees and provides covered employees with job-protected, unpaid time off for several reasons, including to care for their own illness or a sick relative. The New Parent Leave Act applies to businesses with at least 20 employees and provides job-protected time off to bond with a newborn or a child who was recently adopted or placed into foster care. SB 1383 would expand these leave laws to cover businesses with at least five employees.

5. Amendments to 'ABC' Test

AB 1850 and AB 2257 would amend California's stringent law for determining whether workers are independent contractors or employees by creating some exceptions. Currently, freelance writers, photographers, editors and cartoonists should generally be classified as employees if they produce more than 35 works per year for a single client. Among other changes, AB 1850 would establish an exemption for services provided by such workers who meet certain criteria. AB 2257 would create an exemption for some workers in the music industry.

6. Diversity on Boards

"An interesting bill that was introduced late, AB 979, would require California corporations to have 'underrepresented communities' on their board of directors," Kalt noted. Specifically, AB 979 would require corporations with their principal executive office in California to have one director from an underrepresented community by the close of the 2021 calendar year. Additional requirements would apply in later years, depending on the size of the board.

The bill defines a director from an "underrepresented community" as "an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian or Alaska Native."

7. Bereavement Leave

"Employers also should keep an eye on expanded bereavement leave legislation," Thompson said. AB 2999 would require California employers with 25 or more employees to provide up to ten days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild or domestic partner.

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