On November 19, 2020 the California Occupational Safety and Health Standards Board (Cal-OSHA) voted to approve a temporary emergency standard related to COVD-19 regulations that will impose heavier requirements on employers. These regulations took effect December 1, 2020, and will last for 180 days while an advisory committee determines permanent rules.
The new rules require all California employers to:
- Write and implement a COVID-19 Prevention Program;
- Notify exposed employees of potential COVID-19 exposure within one business day;
- Track all COVID-19 cases in the workplace;
- Maintain medical records related to COVID-19 and provide those records to the local health department, California Department of Public Health (CDPH), Cal-OSHA and the National Institute of Occupational Safety and Health (NIOSH) upon request;
- Ensure that COVID-19 cases are excluded from the workplace until the return to work requirements are met;
- Exclude employees with COVID-19 exposure from the workplace for 14 days;
- For employees excluded from work and otherwise able and available to work, employers shall continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.
Over the past few months, the California Legislature passed several employment bills. Some of those laws went into effect immediately and some of those laws will become effective on January 1, 2021. California voters also approved two employment-related propositions during the November 2020 election. These draconian laws, which impose several new requirements on employers, are summarized below. We also summarize several California and Federal COVID-19-related laws that went into effect earlier this year and that were the topics of prior E-BLASTS to remind you of the requirements under these laws.
Employers doing business in California should review these new laws and should contact legal counsel before January 1, 2021 to make sure that they are in compliance. More>>
On September 17, 2020, Governor Newsom signed Senate Bill 1159 effective immediately, which creates a new framework for COVID-19-related workers’ compensation claims. This Bill creates a rebuttable presumption that certain employees who test positive for COVID-19 contracted the virus at work for workers’ compensation purposes and therefore are eligible for benefits, unless the employer can prove otherwise.
The law also requires employers to provide notice to their workers’ compensation carrier of employees who test positive for COVID-19.
Time Frame of Presumption
A “disputable presumption” exists for an employee who suffers illness or death resulting from COVID-19 from July 6, 2020 through January 1, 2023. More>>
On September 17, 2020, Governor Gavin Newsom signed AB 685 into law which places certain reporting obligations on the employer relating to COVID-19. It also expands the power of the California Occupational Safety and Health Administration (Cal/OSHA) to enforce and take action to protect employees. AB 685 goes into effect on January 1, 2021.
Notice Requirements to Employees
The new law requires employers to take all of the following actions within 24 hours after the employer has “notice of the potential exposure” to COVID-19, which is defined below:
- Provide written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19.
On September 17, 2020, Governor Newsom signed Senate Bill 1383 (“SB 1383”), which significantly expands CFRA family and medical leave rights for employees. It goes into effect on January 1, 2021.
CFRA Leave Now Applies to Employers with Five or More Employees
SB 1383 expands the California Family Rights Act (“CFRA”) and the New Parent Leave Act (“NPLA”) to now apply to private smaller employers not covered before. It requires employers with at least five employees to provide an eligible employee with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons. Previously the CFRA applied only to private employers with 50 or more employees within 75 miles of the worksite (and public employers of any size). More>>
On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which requires employers to provide supplemental paid sick leave to the following individuals for reasons relating to COVID-19: (1) food sector employees employed by employers with 500 or more employees in the United States; (2) certain health care providers or emergency responders that employers chose to exempt from the requirements of the federal Families First Coronavirus Response Act (“FFCRA”) pursuant to the FFCRA; and (3) employees employed by private businesses employing 500 or more employees.
This law expires on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later. More>>
The California Consumer Privacy Act (the “CCPA”) imposes new obligations upon certain businesses regarding their collection, use, storage, and disclosure of consumers’ personal information. Beginning on January 1, 2021 the definition of “consumers” will include employees and applicants, dramatically expanding privacy rights when it comes to data collection. This will place new requirements on employers to provide privacy notices and to comply with the CCPA or else face substantial penalties.
What is the CCPA?
The CCPA of 2018 provides robust protections to consumers. The CCPA went into effect on January 1, 2020, and enforcement commenced July 1, 2020. The CCPA also applies to employees and applicants. More>>
On March 18, 2020, the Senate and House passed, and the President signed into law, one of several pieces of federal legislation in response to the Coronavirus/COVID-19 outbreak. The “Families First Coronavirus Response Act” requires employers with less than 500 employees to provide 12 weeks of paid leave for the reasons and at the rates discussed below. It also provides corresponding tax credits to employers.
Emergency Paid Sick Leave Act
Under the Emergency Paid Sick Leave Act, the employer must provide 80 hours of paid sick leave to full-time employees (or a pro-rated amount for part-time employees) at the rates below for any of the following reasons related to COVID-19: (1) the employee is subject to a federal, state, or local quarantine or isolation order; (2) the employee has been advised by a health care provider to self-quarantine; (3) the employee is experiencing symptoms and seeking a medical diagnosis; (4) the employee is caring for an individual who is quarantined due to exposure or symptoms; (5) the employee is caring for a child whose school has been closed or childcare provider is unavailable; or (6) the employee is experiencing any other substantially similar condition. More>>
On January 31, 2020, Judge Kimberly Mueller of the United States District Court in the Eastern District granted a preliminary injunction, which enjoins the state of California from enforcing AB 51. Previously, on December 30, 2019, Judge Mueller granted a temporary restraining order enjoining the enforcement of AB 51 pending the Court’s ruling on the preliminary injunction.
AB 51 is a California anti-arbitration law signed by Governor Newsom on October 10, 2019 that was scheduled to go into effect on January 1, 2020. The law prohibits employers from requiring that job applicants or workers sign arbitration agreements as a condition of their employment or continued employment. More>>
On December 30, 2019, Judge Kimberly Mueller of the United States District Court in the Eastern District granted a temporary restraining order, which enjoins California from enforcing AB 51. AB 51 is a California anti-arbitration law signed by Governor Newsom on October 10, 2019 that was scheduled to go into effect on January 1, 2020. The law prohibits employers from requiring that job applicants or workers sign arbitration agreements as a condition of their employment or continued employment. AB 51 specifically states that it is not “intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act.” More>>