Read more about the new laws affecting employers in California.
California Expands Who an Employee Can Care for Under the CFRA and California Paid Sick Leave Law
Beginning January 1, 2023, employees throughout California will be able to use sick leave or take leave under the California Family Rights Act (CFRA) to care for a “designated person.” Under Assembly Bill (AB) 1041, a designated person is defined as any individual related by blood or whose association with the employee is equivalent to a family relationship. An employee can designate this person at the time they request leave. An employer can limit an employee to one person in a 12-month period as the employee’s designated person.
Employers with employees working in locales with local paid sick leave ordinances will need to evaluate the need for revisions to policies and procedures. Some local paid sick ordinances already allow the use of sick leave to care for a designated person and provide a process for making such designations.
On September 29,2022, California’s Governor Gavin Newsom signed Senate Bill (SB) 1044, which prohibits an employer in the event of an emergency condition from taking or threatening adverse action against any employee for refusing to report to, or leave a workplace or worksite within the affected areas because the employee has a reasonable belief that the workplace or worksite is unsafe.
SB 1044 also prohibits an employer from preventing any employee, including employees of public entities from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety.
SB 1044 requires an employee to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite. The bill clarifies that these provisions are not intended to apply when emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worksite, the worker, or the worker’s home have ceased.
Definition of Emergency Condition
An emergency condition is defined as either of the following:
- Conditions of disaster or extreme peril to the safety of persons or property caused by natural forces or a criminal act.
- An order to evacuate a workplace, worksite, or worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act.
The bill specifies that an emergency condition does not include a health pandemic.
Definition of a Reasonable Belief
A reasonable belief that the workplace or worksite is unsafe means that a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises. The existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations shall be a relevant factor if this information is known to the employee at the time of the emergency condition or if the employee received training on the health and safety regulations mandated by law specific to the emergency condition.
Notably, SB 1044 does not apply to the following:
- First responders.
- Disaster service workers.
- An employee who is 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 and provides services supporting patient care operations during an emergency or is required by law or policy to participate in emergency response or evacuation.
- An employee of a private entity that contracts with the state or any city, county, or political subdivision of the state, including a special district, for purposes of providing or aiding in emergency services.
- An employee working on a military base or in the defense industrial base sector.
- An employee performing essential work on nuclear reactors or nuclear materials or waste.
- An employee of a company providing utility, communications, energy, or roadside assistance while the employee is actively engaged in or is being called upon to aid in emergency response, including maintaining public access to services such as energy and water during the emergency.
- An employee of a licensed residential care facility.
- An employee of a depository institution.
- A transportation employee participating directly in emergency evacuations during an active evacuation.
- An employee of certain privately contracted private fire prevention resources.
- An employee whose primary duties include assisting members of the public to evacuate in case of an emergency.
SB 1044 takes effect on January 1, 2023.
Bereavement Leave Now Protected in California
On September 29, 2022, California Governor Gavin Newsom signed Assembly Bill (AB) 1949, which amends the California Family Rights Act (CFRA) to require covered employers to provide eligible employees with 5 days of bereavement leave.
AB 1949 applies to employers with 5 or more employees nationwide. Under the bill, employees who have been employed at least 30 days before the leave may take 5 days of bereavement leave for the death of a family member. A family member is defined as including:
- A spouse
- A domestic partner
- A child
- A parent
- A parent-in-law
- A sibling
- A grandparent
- A grandchild
Bereavement leave is unpaid generally unless the employer has an existing policy that provides for paid leave or if the employee has accrued leave, including vacation time or sick leave that they elect to use.
Employers are permitted to request documentation of the death of the family member, which can include a death certificate, a published obituary, or a written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution or government agency.
Under the new legislation, employers are required to maintain the confidentiality of any employees requesting bereavement leave.
While AB 1949 amends the CFRA, the leave is separate from other leave offered to employees for their serious illness or to care for another with a serious illness.
This bill does not apply to an employee covered by a collective bargaining agreement if the agreement expressly provides: (1) for bereavement leave equivalent to that required by the bill; (2) for the wages, hours of work, and working conditions of the employees; and (3) for 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.
AB 1949 takes effect on January 1, 2023.