(Source: Lisa Aguiar, Michael Sullivan & Associates LLP – January 17, 2023)
2023 marks the end of COVID-19 emergency regulations and the implementation of permanent COVID requirements. While several of the new 2023 laws relate in some way to COVID, businesses can expect a return to more non-COVID related requirements. Employers must implement wage transparency policies and implement an expansion of CFRA and sick leave policies by expanding the definition of family member to include a non-blood related individual. To avoid retaliation claims, employers must be aware of additional protected activities included those related to reproduction and fertility and employees’ right to leave the workplace during natural disasters and emergency conditions. Finally, bereavement leave has been expanded and, for larger employers, new privacy requirements must be implemented.
Please note this summary is intended for educational purposes only, and employers should consult qualified counsel to ensure compliance with 2023’s new laws.
All requirements are effective January 1, 2023, unless otherwise noted.
Supplemental Paid Sick Leave (SPSL) for COVID-related reasons expired on December 31, 2022. Employers should note that any employee who began an SPSL absence on or before December 31, 2022 may continue that absence as necessary, using their remaining SPSL balance, even if that extends the absence into January. Be aware of ongoing local ordinances with parallel COVID sick pay obligations including Los Angeles City/County, Long Beach, Oakland, and San Francisco (PHELO).
San Francisco Public Health Emergency Leave (PHELO)
Effective October 1, 2022, businesses with 100 or more employees worldwide must provide up to 80 hours of paid public health emergency leave to each employee who performs work in San Francisco.
- There is no minimum length of time the employee must work in order to be eligible for the leave and the leave is available to both part-time and temporary employees.
- This paid leave is in addition to any other paid time off, including paid sick leave under the San Francisco paid sick leave ordinance.
Employers are required to post notice of this new law.
Employees may use this leave when they are unable to work (or telework) due to the following:
- The recommendations or requirements of an individual or general federal, state, or local health order (including an order issued by the local jurisdiction in which an employee or a family member the employee is caring for resides) related to the public health emergency.
- The employee, or a family member the employee is caring for, has been advised by a healthcare provider to isolate or quarantine.
- The employee, or a family member the employee is caring for, is experiencing symptoms of and is seeking a medical diagnosis for, or has received a positive medical diagnosis of, a possible infectious, contagious, or communicable disease associated with the public health emergency.
- The employee is caring for a family member whose school or place of care has been closed, or the care provider of a family member is unavailable, due to the public health emergency.
- An air quality emergency, if the employee is a member of a vulnerable population and primarily works outdoors.
The leave is also subject to the following restrictions and regulations:
- The leave is available only during the public health emergency.
- Employers are not required to payout any unused leave.
- An employer may require a doctor’s note.
- Employees who assert their right to receive public health emergency leave are protected from retaliation.
The following public health emergencies have been declared by the City and County of San Francisco Department of Public Health and are currently ongoing:
- COVID-19 which was declared a public health emergency on March 6, 2020.
- Monkeypox virus which was declared a public health emergency on August 1, 2022.
Cal/OSHA Permanent Standards
Cal/OSHA has preliminarily approved a Covid Permanent Standard that will become effective sometime in January 2023 and will remain in effect for three years from the final approval.
The Permanent Standards relax several previously mandatory requirements and have modified some important definitions.
The following are changes employers need to be aware of and implement.
- Exclusion Pay: Exclusion pay has been eliminated so employers are no longer required to pay the wages of close contacts of Covid cases exposed while in the workplace. Exclusion pay may be added back into the Permanent Standard. The issue is expected to be decided in a January 19, Cal/OSHA board meeting.
- Notice Requirements: Employers must continue to provide notice of possible exposure to close contacts and those present in the worksite during the infectious period of a Covid case. Employers may now post the notice in all places where notices to employees concerning workplace rules or regulations are customarily posted.As a reminder, Supplemental Paid Sick Leave (“SPSL”) expired on December 31, 2022.
- Employee Screening: Employers are no longer required to screen employees for COVID-19 symptoms but must continue to (1) effectively identify and respond to persons with COVID-19 symptoms at the workplace; (2) encourage employees to report COVID-19 symptoms and to stay home when sick.
- Employer-Provided Testing: Employers must still make testing available to employees who had a close contact in the workplace and as required under outbreak protocols, but employers are no longer required to make testing available to any employee experiencing COVID-19 symptoms.
- Outbreak Protocols: Several changes have been made to outbreak protocols including:
- Employers need not report non-major outbreaks to local health departments
- Major outbreaks must be reported Cal/OSHA
- The outbreak and major outbreak status ends when there are one or fewer new Covid cases detected in the exposed group in a 14-day period
- During a non-major outbreak, employers need not evaluate whether the six-foot physical distancing would be appropriate to prevent further Covid cases
- If ventilation is not sufficient to reduce transmission in any outbreak employers will be required to use high-efficiency particulate air (HEPA) filtration in indoor areas
- Covid Prevention Plan: Employers may incorporate their Covid Prevention Plan in their written Injury and Illness Prevention Program (“IIPP”), if required to have one, or may keep it in a separate document.
- Changes to Definitions: The significant definition changes include:
- “Close Contact” – Two new definitions of closed contact were adopted that distinguish between workplace size:
- Indoor spaces of 400,000 cubic feet or less: a close contact results from sharing the same indoor space for 15 or more cumulative minutes within 24 hours during the infectious period. Here, six feet of distance does not matter.
- Indoor spaces of greater than 400,000 cubic feet: a close contact results from being within six feet of a COVID case for a cumulative total of 15 minutes or more within 24 hours during the infectious period.
- Each room with floor-to-ceiling walls makes up a distinct indoor space for the purposes of this rule. Employees wearing a respirator during this time are not close contacts.
- “Exposed Group” clarifies that spaces individuals momentarily pass through without congregating, regardless of whether they are wearing a face covering, are not considered for the purpose of determining if a group has been exposed.
- “Infectious Period”
- For symptomatic cases, the infectious period may now end five days (down from 10 days) after the onset of symptoms if the individual tests negative on the 5th day and has not had a fever for over 24 hours without medication.
- For asymptomatic cases, the infectious period may also end five days after a positive test if a negative test is produced on the fifth day.
- “Close Contact” – Two new definitions of closed contact were adopted that distinguish between workplace size:
Please visit sullivanattorneys.com for a free live e-book resource Navigating COVID-19 for updates when this law is approved in final form.
AB 1041 – DESIGNATED PERSONS FOR CFRA AND PAID SICK LEAVE
The California Family Rights Act (CFRA) requires employers with five or more employees to provide 12 weeks of job-protected leave to employees for the treatment of their own serious health condition or that of a family member. Likewise, employees may use California paid sick leave entitlement for both their own or their family members’ illnesses.
Prior to AB 1041, both laws had a fairly broad, but not unlimited, definition of a family member, but now each includes in that definition a “designated person,” selected by the employee. For CFRA purposes, the designated person is supposed to be an “individual related by blood or whose association with the employee is the equivalent of a family relationship,” but whether that proves to be a meaningful limitation remains to be seen. Employers may, however, require that employees designate only one such person for each 12-month CFRA period.
The amendments do not increase the amount of paid sick leave or unpaid CFRA leave available to workers, but the changes to CFRA could interact in strange ways with the similar—but stricter—Family Medical Leave Act (FMLA) under federal law. When an employee takes CFRA leave for a reason that also qualifies for FMLA leave, the employee’s allotment of 12 weeks of leave runs concurrently under both laws. However, a California employer cannot draw down an employee’s FMLA leave balance for leave that only qualifies under CFRA. Accordingly, an employee could use 12 weeks of CFRA leave to care for a designated person and then have another 12 weeks of FMLA leave remaining for their own serious medical condition or that of an FMLA-qualifying family member. Until further guidance is issued by regulatory authorities, employers subject to both laws should tread carefully and never assume that FMLA and CFRA leave run concurrently.
SB 1162 – PAY SCALE AND SALARY REPORTING
In a move intended to advance pay equity in the state, California companies with 15 or more employees must now provide a pay range on all job postings. This supplements existing requirements to provide a pay scale to applicants and current employees upon request.
SB 1162 also requires employers with 100 or more employees to submit an annual pay data report to the state, with the first due in just a few months, on May 10, 2023. This is similar but more detailed than the EEO-1 reports employers with 100 or more employees must already send to the federal government. The new California report must include mean and median pay rates, broken down by race, ethnicity, sex, and every combination of the above. The data must also include pay data for various job categories, including management/executives. Employers subject to the new requirement should not wait to confirm the required data is available and prepare for reporting in the spring.
AB 1949 – BEREAVEMENT LEAVE
While many employers have long-standing policies giving employees time off to mourn the passing of their loved ones, AB 1949 now requires employers with five or more employees to provide at least five days of bereavement leave. The leave may be unpaid, but employees must be allowed to use accrued paid time off, including sick leave for, the absences. The leave must be completed within three months of the date of death. The bill also includes confidentiality requirements related to the leave.
NEW PROTECTED ACTIVITIES
Reflecting wider legal developments across the country, California has added reproductive health decisions, the off-duty use of cannabis (marijuana), and refusing to work at a site made unsafe by emergency conditions to the list of activities protected against employer retaliation.
SB 523 prohibits discrimination against employees or applicants because of “a decision to use or access a particular drug, device, product, or medical service for reproductive health.” The bill also forbids employers to require the disclosure of information related to those decisions and strengthens requirements for health insurance to cover reproductive health.
SB 1044 protects employees from discipline for leaving or refusing to report to a work site during natural disasters and other emergency conditions when the employee has a reasonable belief that the site has become unsafe. While the employee’s belief may be subjective, employers can hope that the requirement for a genuine emergency condition or evacuation order will prevent such claims from getting out of control. Of note, the bill specifically excludes health pandemics from the definition of an emergency condition.
AB 2188 passed in 2022 but will not take effect until January 1, 2024, protects employees from job-related consequences for the off-duty use of cannabis, which has been legal for non-medical adult use in California since 2016. Most employers are now prohibited from making adverse employment decisions against employees because of their off-duty use of cannabis or because they tested positive for non-psychoactive metabolites of THC, the primary active ingredient in cannabis, which can be present in an individual’s body long after the substance’s consumption.
The new law does not prevent employers from enforcing rules against being impaired on the job or possessing cannabis at the workplace, or from disciplining employees who violate such rules. It also does not affect employers that are subject to Drug-Free Workplace or similar regulations requiring drug screening.
NEW PRIVACY REQUIREMENTS
The California Consumer Privacy Act (CCPA) imposes a number of duties on entities that collect consumers’ personal information, among them providing notice of their privacy practices, giving consumers an opportunity to request deletion of any private information collected, and allowing consumers to request that their personal information not be sold. Information collected for employment purposes has been exempt from the CCPA since it passed in 2018, but that exemption expired as of January 1, 2023, and has not been extended.
Fortunately, many small and mid-sized employers remain outside the CCPA’s scope, as the law only applies to employers that have more than $25 million in annual gross revenue; buy, receive, share, or sell personal information from 50,000 or more individuals; or derive 50 percent or more of their annual revenues from selling personal information. Employers who may meet those requirements should consult with qualified counsel to develop compliance privacy policies and practices.