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Getting Ready for 2023 and Beyond: New California Employment Laws

By Employment Practices Manager Kelly Trainer Policky

The 2022 legislative session ended on September 30, 2022, with Governor Newsom signing 997 bills into law while vetoing 169 bills. Among those are several employment laws that employers should prepare for as the end of 2022 draws near. Unless otherwise noted in the summaries below, approved bills are effective on January 1, 2023.

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AB 2188: Employment Discrimination and Cannabis
As previously reported, AB 2188 has amended the California Fair Employment and Housing Act (FEHA) by protecting an employee’s use of cannabis off the job and away from the workplace. AB 2188 also prohibits any employment-related drug test that screens for non-psychoactive cannabis metabolites in the employee’s or applicant’s hair, blood, urine, or other bodily fluids. However, AB 2188 permits testing that detects psychoactive THC in an individual’s bodily fluids or tests actual impairment. The bill also allows employers to continue prohibiting employees from possessing or being impaired by cannabis on the job. There are limited exceptions to the new requirements.

This bill is effective on January 1, 2024, which gives employers more than a year to update their relevant workplace policies and procedures. Further, as this was an amendment to the FEHA, the California Civil Rights Council (previously known as the Fair Employment and Housing Council) will likely consider possible regulatory updates in 2023. Employers should continue to monitor for updates.

SB 523: Reproductive Health Decisionmaking
SB 523 amends the FEHA to make it unlawful to discriminate against employees or applicants because of their “reproductive health decisionmaking.” “Reproductive health decisionmaking” is defined to include, without limitation, a decision to use or access a particular drug, device, product, or medical service for reproductive health. SB 523 also prohibits employers from requiring, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decisionmaking.

AB 1949: Bereavement Leave
AB 1949 amends the California Family Rights Act (CFRA), which is part of the FEHA, to require that covered employers provide up to five days of bereavement leave to eligible employees for the death of the employee’s spouse, domestic partner, child, parent, parent-in-law, sibling, grandparent, or grandchild. Covered employers are private businesses that employ five or more persons or the state and any political subdivision of the state, including, but not limited to, cities and counties. Employees are eligible if they have worked for the employer for at least 30 days. The five days do not need to be taken consecutively but must be used within three months of the death.

While the leave is unpaid, employees are entitled to use their accrued paid leaves, including sick leave, to offset their lost wages. Employers may require the employee to provide documentation to confirm the need for leave, such as a death certificate; a published obituary; or written verification of death, burial, or memorial services from a funeral home or other applicable entity. Note, however, that this request must occur within 30 days of the employee’s first day of leave. Employers are required to maintain the confidentiality of any employee requesting bereavement leave and any provided documentation, except to internal personnel or legal counsel, as necessary or as required by law.

AB 1949 does not apply to an employee who is covered by a valid collective bargaining agreement if the agreement expressly provides for bereavement leave equivalent to that required by AB 1949 and for the wages, hours of work, and working conditions of the employees, and if the agreement provides 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. Members should review their existing bereavement leave MOU/CBA provisions and policies to determine if changes are necessary. If an employer has an existing bereavement leave policy, then leave should be taken pursuant to that policy. If that policy provides for less than five days of leave, then the employee would be entitled to no less than a total of five days of bereavement leave, with the policy-provided leave paid under the policy and the remaining days unpaid, except that the employee can use accrued paid leave.

AB 1949 also contains provisions that protect employees from interference, discrimination, and retaliation because of their exercise of rights provided under the new law.

AB 1041: Leave to Care for “Designated Persons”
On January 1, 2021, the CFRA definition of a covered family member was expanded to include adult children, siblings, grandparents, grandchildren, and parents-in-law. AB 1041 further expands that definition by including a “designated person.” The bill defines a “designated person” as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” No additional guidance is contained in the bill on how an employer determines if the person is the “equivalent of a family relationship.” The bill requires the employee to identify the designated person when they request leave. Employers are permitted to limit employees to one designated person per 12-month period. The Civil Rights Commission may issue amendments to the CFRA regulations to provide further clarification on these new requirements.

In addition, AB 1041 added “designated person” to the list of family members an employee may take time off to care for under the Healthy Workplaces, Healthy Families Act, California’s paid sick leave law. For purposes of the paid sick leave law, AB 1041 did not include the requirements that the person have the equivalent of a family relationship. AB 1041 does permit employers to limit the designated person to one per 12-month period for paid sick days.

SB 1044: Emergency Conditions
SB 1044 was passed in response to reports of employees being required to work in unsafe wildfire conditions. It prohibits an employer, during an “emergency condition,” from taking adverse action against an employee for refusing to report to or leaving a workplace or worksite because the employee has a “reasonable belief” that the workplace or worksite is unsafe. For purposes of this bill, “emergency condition” means (1) conditions of disaster or peril caused by natural forces or a criminal act; or (2) an order to evacuate a workplace, worksite, a worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act. “Emergency condition” does not include a health pandemic, such as COVID-19. An employee’s belief that the workplace is unsafe is “reasonable” if a person under similar circumstances would conclude there is a real danger of death or serious injury if that person enters or remains on the premises.

However, SB 1044 will have a more limited application in the public sector, as the above provision expressly does not apply to several types of employees, including, but not limited to, the following:

• A first responder, as defined in Section 8562 of the Government Code.
• A disaster service worker, as defined in Section 3101 of the Government Code.
• An employee 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, provides services supporting patient care operations during an emergency, or is required by law or policy to participate in emergency response or evacuation.
• A transportation employee participating directly in emergency evacuations during an active evacuation.
• An employee whose primary duties include assisting members of the public in evacuating in case of an emergency.

SB 1044 also prohibits employers from preventing employees from using their mobile devices to seek emergency assistance, assess the safety of a situation, or communicate with a person to verify their safety in such an “emergency condition.”

AB 2693: Extension of COVID-19 Notice Requirements
AB 2693 changes and extends the COVID-19 notification requirements in Labor Code 6409.6. Under existing law adopted under AB 685, employers must provide written notice of potential workplace COVID-19 exposure within one business day to all employees at the worksite. Under AB 685, this requirement was set to expire on January 1, 2023. AB 2693 extends the reporting obligation to January 1, 2024, and gives employers an alternative way to comply with their notification requirements.

Instead of sending a written notice, employers will be able to choose to prominently display a notice to inform employees of potential COVID-19 exposure, so long as the posted notice complies with several statutory requirements, including:

• The employer must post the notice in all places where notices regarding workplace rules or regulations are customarily posted, including an existing employee portal.
• The employer must post the notice within one business day of notification of the potential COVID-19 exposure, and it must remain posted for not less than 15 calendar days.
• The employer must post the notice in English and the language understood by the majority of employees.
• The notice must contain the following:
  • The dates on which an employee (or an employee of a subcontracted employer) with a confirmed case of COVID-19 was on the worksite premises during the infectious period;
  • The location of the exposures, including the department, floor, building, or another area (but the location need not 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, and anti-retaliation and anti-discrimination protections; and
  • Contact information for employees to receive the cleaning and disinfection plan the employer is implementing.

Employers must also keep a log of all dates the required notice was posted at each worksite and allow the Labor Commissioner to access these records.

As of the publication date of this article, the proposed Cal/OSHA COVID-19 non-emergency standard provisions on notice are not yet harmonized with AB 2693. Therefore, employers should continue to monitor the development of the Cal/OSHA standard to ensure compliance with all notice requirements.

In addition, employers will no longer be required to notify the local public health agency in the event of an outbreak. The California Department of Public Health is also no longer required to publicize workplace industry information regarding COVID-19 outbreaks and cases received from local public health departments.

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