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HR Update: Upcoming California Employment Law Changes for 2021

By December 31, 2020 No Comments

California Family Rights Act

Currently, the California Family Rights Act (CFRA), like the federal Family and Medical Leave Act (FMLA), covers employers with 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. Currently, California businesses with 50 or more employees must provide eligible workers with up to 12 weeks of job-protected, unpaid leave under CFRA and the federal FMLA.

Effective January 1, 2021, the CFRA will be expanded to cover employers with five (5) or more employees. Additionally, the definition of “family member” under the Act will be expanded to include grandparents, grandchildren, siblings, adult children, and domestic partners and children of domestic partners.

Employers large enough (50 or more employees anywhere) to be covered by both CFRA and the FMLA will be faced with a “stacking” problem: when CFRA and the FMLA overlap, time taken off can be treated as covered by both laws. However, when CFRA extends a right that does not exist under the FMLA, e.g., caring for grandparents, an employee taking that time off will not be using FMLA-provided time and the FMLA entitlement will remain available for use by the employee for a FMLA leave if the employee meets FMLA eligibility requirements, e.g., caring for a spouse. Thus, employees could conceivably use up to 24 weeks of leave during a rolling 12-month period under the two laws.

Regulations under the CFRA provide that if a covered employer has an employee handbook that describes other kinds of personal or disability leaves available to employees, it must include a description of CFRA leave in its handbook.  Employers that do not yet address CFRA in their handbooks should incorporate a CFRA policy as part of their 2021 handbook update, and employers with an existing CFRA policy should revise the policy to incorporate the amendments.

COVID-19 Notification Requirements

On November 30th,  a California OSHA emergency temporary standard went into effect regarding COVID-19 (it will be in effect for 180 days). The standard applies to all employees and places of employment, except for places of employment with one employee where there is no contact with other persons, employees working from home or employees covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.

The emergency standard entails a multitude of requirements for employers, such as implementing a written COVID-19 prevention program, training employees on COVID-19 prevention, documenting COVID-19 cases and exposures, notifying exposed employees, providing no-cost COVID-19 testing under certain circumstances, continuing to provide wages in certain circumstances to employees who are excluded from the workplace due to COVID, and reporting positive cases  to the local health department.

The Division of Occupational Safety & Health (“Cal OSHA”) has maintained that many of the requirements are not entirely new and align with guidance previously issued on measures to address COVID-19 hazards in connection with employers’ Injury Illness and Prevention Program. Cal OSHA has also informally conveyed that the agency will work with employers to achieve compliance with the Rule, particularly in situations where employers are making a diligent effort to comply.

To help you comply with the emergency standard, Cal OSHA released a Frequently Asked Questions page, which may be found here.

Cal OSHA also released a fact sheet summarizing the requirements for employers, which may be found here.  

Effective January 1, 2021, Assembly Bill 685 will enhance the employee notice requirements previously listed under the emergency standard. It will also reinforce the existing employer reporting requirements to the local health department and Cal OSHA’s enforcement abilities pertaining to COVID-19 prevention .

Notice to Employees

The AB 685 notification provisions are more stringent than what is required under the emergency temporary standard . Beginning on the 1st of January, California employers will be required to provide written notice of potential exposure to all employees, and the employers of subcontracted employees in addition to independent contractors, who were on the premises at the same worksite as a person who was infectious with COVID-19 or who was subject to a COVID-19-related quarantine order.

After becoming aware of a potential exposure because someone at the worksite was infectious with COVID-19 or is ordered by a public health official to isolate due to COVID-19 concerns, within one business day, employers must provide the written notice. The written notice must include  information regarding COVID-19-related benefits and the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control and Prevention.

Here is a helpful link to this legal update.

Mandated Child Abuse Reporting and Training

Under the current Child Abuse and Neglect Reporting Act, “mandated reporters” are required to report suspected child abuse to law enforcement. This Act has been amended, and beginning January 1, 2021, human resources employees and front-line supervisors working for California employers with five or more employees that also employ minors will become mandated reporters.

The definition of a human resources employee is any employee designated by the employer to accept complaints of discrimination, harassment, retaliation, etc., made under California’s Fair Employment and Housing Act. A human resources employee is a mandated reporter for any child abuse, which includes acts and omissions constituting physical abuse, sexual abuse (including both sexual assault and sexual exploitation), willful cruelty or unjustified punishment, unlawful corporal punishment or injury, and neglect.

A front-line supervisor is an adult employees whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace. A front-line supervisor is a mandated reporter of sexual abuse.

Covered employers are required to provide training to employees who have reporting duties under the law. The training must include training in both the identification and reporting of child abuse and neglect. The training requirement may be met by completing the general online training for mandated reporters offered by the Office of Child Abuse Prevention in the State Department of Social Services.

Here is a link to the free online training as well as additional helpful resources to assist with compliance.

Kin Care Leave

Currently, California law permits employees to use up to one-half of their accrued and available sick leave to attend to the illness or preventative care of a family member. Employers are prohibited from discriminating against employees because they used their sick leave for such purposes.

The California Labor Code section 233 has now been amended to provide that an employee has sole discretion to designate sick leave taken for kin care, i.e., caring for a sick family member. Specifically, this law was designed to prevent an employer’s designation of an employee’s usage of sick days as kin care, which would intentionally or erroneously deplete the employee’s available kin care leave. Beginning January 1, 2021, employees are provided with the right to designate what type of sick days they wish to take.

Leave for Victims of Crime or Abuse

Beginning January 1, 2021, Assembly Bill 2992 will expand existing law that provides protected leave for employees who are victims of domestic violence, sexual assault, or stalking. Specifically, the definition of “victim” will broadened to include leave for victims of other crimes or offenses that caused physical injury or that caused mental injury and a threat of physical injury, or an employee whose immediate family member is deceased as the direct result of a crime.

Additionally, AB 2992 will expand the types of documentation that an employee may provide to verify their eligibility for the leave. Proper documentation will now include any form of documentation that reasonably verifies that the crime or abuse occurred, including but not limited to, a written statement signed by the employee, or an individual acting on the employee’s behalf.

New Pay Data Reporting Requirement

On or before March 31, 2021 and annually thereafter, California private employers with 100 or more employees nationwide, with at least one employee performing work in California and who is required to file an annual EEO-1 must submit an annual pay data report to the Department of Fair Employment and Housing (DFEH). The report must include the number of employees and the hours they worked by race, ethnicity and gender in 10 federal identified job categories and whose annual earnings fall within the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey.

The DFEH intends to create an employer submission portal on its website where employers can submit the required report. The DFEH also intends to publish standard forms for employers to use in submitting the required data, although it has confirmed that an employer may submit a federal EEO-1 Report to the DFEH in order to fulfill its reporting obligation, as long as it contains the same or substantially similar pay data information required pursuant to SB 973. DFEH is continuing to publish guidance to employers on a rolling basis.

If you have questions, or would like for us to update your company policies in accordance with the aforementioned legal updates, please contact one of our HR Consultants at 1-888-622-6460.

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