Legislative Replace: Paid Depart And Lodging Tops 2021 Legislative Yr – Employment and HR

Seyfarth Synopsis: Headlining
the number of employment-related bills California legislators
introduced by the February 19th deadline are those that would
extend COVID-19 Supplemental Paid Sick Leave and provide other
leaves and accommodations.

After last year’s pandemic-caused truncation of the 2020 legislative
session—in which the governor signed only 372 new laws, the fewest
since 1967—many expected the introduction of a large number
of bills. Yet “only” 1,560 bills were introduced  in the Assembly this year, the
lowest number in six years—though there is no shortage of
labor and employment-related bills.

Below, we summarize the most significant labor and employment
bills introduced, which help mark the legislative playing field for
California employers this year. The bills will now make their way
through the committee process. Many of these measures will undergo
significant amendment.  Some will make it through the
legislative process and some will not. Stay tuned for more in-depth
analyses of the proposed bills as the session continues.

Top COVID-19-Related Bills

Headlining our bill count this year are two bills designed to
accomplish something employers have anxiously wondered about since
the prior COVID-19 Supplemental Paid Sick Leave law (AB 1867 in 2020, which we
summarized here) expired at the end of 2020.

COVID-19 Supplemental Paid Sick Leave:  AB 84 & SB 95 are parallel budget trailer bills that would, effective immediately
upon the Governor’s signature, extend the expiration date for
COVID-19 supplemental paid sick leave (SPSL) for food sector
workers (EO N-51-20), and other covered workers, to
September 20, 2021, or any expiration of any federal extension of
the EPSLA, and make the provisions retroactive to
January 1, 2021. The bills would provide an annual allotment of up
to 80 hours of available SPSL until the eventual expiration date.
The bills would expand SPSL beyond people who leave their home to
perform work to also include persons who telework.  The bills
would also extend SPSL entitlements to reasons related to
vaccinations, and similar to the now-expired FFCRA, it would expand coverage to those
seeking medical diagnosis for COVID-19 symptoms, and caring for
individuals who are quarantining or seeking medical diagnosis or
whose school or place of care is closed due to COVID-19. For
non-food sector SPSL, the bill would also remove the 500-employee
qualification for an entity to be subject to the law, add public
employers generally to its application, and make other changes. For
those of you anxiously tracking the progress of these bills, they
are likely to be heard in the respective Budget Committees on March
8.

Rehiring and Retention of Displaced Workers: AB 1074,  bringing back AB 3216 (2020) (which Governor
Newsom vetoed), would require certain employers to
offer preferential recall to employees who were laid off because of
the pandemic. If an employer hires someone other than a laid-off
employee, it must notify the employee within 30 days, providing
specified reasons for the decision and information on those hired.
The bill would additionally expand 2020’s Displaced Janitor
Opportunity Act to hotel services employers, requiring successor
contractors or subcontractors to retain employees for 60 days after
transition, and continued employment for satisfactory
performance.

COVID-19 Contact Tracing and Safety Policies: SB 46 would require employers to develop
and implement contact tracing and safety policies for their
employees, including requiring notice to the employer when an
employee receives a positive COVID-19 test.

Pandemics Priority for Medical Treatment: AB 93 would prioritize workers in the
food supply industry, such as field workers and grocery workers,
for rapid testing and vaccination programs in response to
pandemics, including COVID-19.

COVID-19 Rent Relief: AB 255 is earmarked to provide commercial
rent relief protections for small businesses affected by the
COVID-19 pandemic.

Spot Bills: Bills introduced without substance but
to hold a “spot” into which amendments will later be made
include AB 257, which creates a FAST
Recovery Act to address the COVID-19 pandemic’s effect on the
fast food industry. AB 757 would authorize a private employer
to request prescribed documentation of a positive COVID-19 test or
diagnosis if (1) an employee reports that the employee is unable to
work due to a positive for COVID-19 test result and (2) the
employer determines that an employee may be subject to a 14-day
exclusion from the workplace as required under certain law or
regulations. Employers must continue to comply with existing
privacy protections when requesting documentation.

Discrimination and Retaliation Prevention

Political Affiliation Protection: SB 238 would add political affiliation as
a protected characteristic under the FEHA.

Employment Discrimination: AB 1119 would expand FEHA-protected
characteristics to include “family responsibilities,”
defined as the obligations of an employee to provide direct and
ongoing care for a minor child or a care recipient, and add it as a
basis for which employers must engage in the interactive process
and provide reasonable accommodation to an applicant or
employee.

Cannabis Screening:  Answering that question,
“When will California ever get around to protecting marijuana
users from employment discrimination?,” AB 1256 would prohibit employers from
discriminating against a person in hiring, termination, or any term
or condition of employment because a drug screening test has found
the person to have tetrahydrocannabinol (THC) in their urine. (This
bill would exempt employers required to drug test based on federal
law or regulations, those that would lose monetary or licensing
benefits for failing to drug test, and building and construction
employers.)

Required Disclosures to Temporary Agricultural
Workers: AB 857  would prohibit employers from
retaliating against an H-2A employee for raising questions that
relate to employment, housing, or working conditions. and would
require an employer to provide an H-2A employee on the day the
employee begins work in the state a written notice in Spanish and,
if requested by the employee, in English, containing specified
information relative to an H-2A employee’s rights pursuant to
federal and state law. It would also require an employer to provide
compensation for travel time at their regular rate of pay to or
from employer provided housing to the worksite, as well as other
requirements (with certain exemptions for employees covered by
CBAs).

More Spot Bills: AB 1122 would encourage employers to
develop and implement personnel policies that incorporate workforce
diversity. AB 316   is aimed to achieve pay
equity in state employment across gender, racial, ethnic, and
under-represented groups.

Leaves

Bereavement Leave Act of 2021: AB 95 would require employers with 25 or
more employees to grant employees unpaid bereavement leaves of up
to ten business days, and would require employers with fewer than
25 employees to grant unpaid bereavement leaves of up to three
business days. Leave entitlement would be triggered by the death of
a spouse, child, parent, sibling, grandparent, grandchild, or
domestic partner.

Employer Provided Backup Childcare Benefit:  AB 1179 would require employers of 1,000
or more employees to provide employees, on or after January 1,
2022, with up to 60 hours of paid backup childcare benefits, to be
accrued and used as provided. Accrued paid childcare shall carry
over to the following year of employment. But, employers could
limit use of the accrued paid backup childcare benefits to 60 hours
during each year of employment.

Paid Sick Leave Accrual and Use: AB 995 would modify the employer’s
alternate sick leave accrual method to require that an employee
have no less than 40 hours of accrued sick leave or paid time off
by the 200th calendar day of employment or each calendar year, or
in each 12-month period. The bill would raise the employer’s
authorized limitation on the employee’s use of carryover sick
leave to 40 hours or 5 days.

Family Member Definition Expansion: AB 1041 would expand the definition of
the term “family member” under the Healthy Workplaces, Healthy Families Act of
2014 (CA PSL) to include individuals related by blood or
whose close association with the employee is the equivalent of a
family relationship. The bill, in its current form, does not define
how “close” an association must be to be considered the
“equivalent of a family relationship.” The bill would
also expand the universe of employees eligible to take CFRA leave,
or Paid Family Leave (PFL) to care for to individual to include
such a “close association.”

Paid Family Leave Weekly Benefit Increase: AB 123 would revise the formula for
determining benefits available pursuant to the family temporary
disability insurance program, for periods of disability commencing
after January 1, 2022, by redefining the weekly benefit amount to
be equal to 90% of the wages paid to an individual for employment
by employers during the quarter of the individual’s disability
base period in which these wages were highest, divided by 13, but
not exceeding the maximum workers’ compensation temporary
disability indemnity weekly benefit amount established by the
Department of Industrial Relations.

Paid Family Leave Expansion Where Child Deceased In
Childbirth: AB 867 would expand eligibility for
benefits under the Paid Family Leave program by to include leave
for a parent who was pregnant with a child, if the child dies
unexpectedly during childbirth at 37 weeks or more of
pregnancy.

Small Employer Family Leave Mediation Pilot
Program:  AB 1033 is a re-run bill that would
attempt again to establish pilot program for a small employer
family leave mediation. The measure would also expand CFRA to
include leave to care for a parent-in-law within the definition of
family care and medical leave and make numerous other changes.

Wage and Hour

Telecommuting Employees: AB 513 is a welcome bill to employers
that would authorize employees working from home to receive legally
required notices and postings electronically and sign certain
documents electronically, and would deem that the final wages due
to an employee working from home are  paid on the date that
the paycheck is mailed to the employee.

Telework Flexibility Act: AB 1028 would authorize telecommuting
employees to waive overtime up to 10 hours of work per day, and
waive split shift premiums if the employee requests an
employee-selected remote work flexible schedule, and it would
permit an employee to choose when to take any meal or rest period
during the workday. Similarly, watch for when substance is amended
into spot bill AB 55 toward its stated purpose of
affording certain rights and benefits to telecommuting
employees.

Workplace Flexibility Act of 2021: AB 230, would permit an individual nonexempt
employee to request an employee-selected flexible work schedule,
allowing for workdays of up to 10 hours per day within a 40-hour
workweek, where the employee would not be entitled to overtime
compensation for those additional daily hours.

Wage Records Inspection: AB 436 would amend Labor Code §
226(b) to harmonize the time frame to respond to requests pursuant
to Labor Code § 226(b) with requests for personnel records
pursuant to Labor Code § 1198.5 by allowing the former records
to be produced within the same time frame as the latter (i.e., 30
days).

Wage Theft: AB 1003 would amend the Penal Code to
make punishable as grand theft an employer’s intentional theft
of wages in an amount greater than $950, in aggregate (involving
one or more employees).

Wage Withholdings: SB 505 would provide that, prior to
garnishing wages when the employer is required or empowered to do
so by state or federal law, employers must make a good faith effort
to consult with an employee to obtain a written authorization to
resolve a monetary obligations before employing third-party
collection services or commencing a civil action. Where a written
authorization provides for a withholding or diversion of an
employee’s wages, the amount withheld or diverted shall not
exceed 5% of the employee’s monthly gross wages.

Expansion of Garment Manufacturing Definition: SB 62 would potentially expose persons or
entities contracting for the performance of garment manufacturing
to joint and several liability with any manufacturer and contractor
for the full amount of any unpaid wages, any other compensation,
damages, liquidated damages, attorney’s fees, civil penalties,
and any other penalties to any and all employees who performed
garment manufacturing operations for any violation. The measure
would also eliminate piece rate compensation in the garment
industry. This measure almost precisely replicates SB 1399, which did not quite make it to
the Governor’s desk in 2020, likely simply a result of timing
and other priorities in 2020.

Warehouse Distribution Centers Quota
Disclosures: AB 701 would require that employers
provide nonexempt employees who work at a warehouse distribution
center a written description of each quota the employee must meet,
including the quantified number of tasks to be performed, or
materials to be produced or handled, within the defined time
period, as well as notice that failure to meet the quota could
result in adverse employment action, and would prohibit an adverse
action against an employee for failure to meet any quota that has
not been disclosed.

Limitations to PAGA: AB 385 aims to ease the litigation risk
of the pandemic on employers by prohibiting employees from
maintaining an action under PAGA for violations of the Labor Code
arising between March 4, 2020, and the state of emergency
termination date. AB 530 would require the “aggrieved
employee” to inform the employer which specific violations of
the Labor Code are being alleged under each subdivision of PAGA and
to inform the employer if statutory right-to-cure provisions
apply.

Independent Contractors: Three bills have been
introduced thus far in the continued attempt to reform AB 5,
including AB 231, which would make permanent the
exemption from the ABC test for licensed manicurists, by providing
that they be indefinitely governed by the
multifactor Borello  test instead of the ABC
Test. AB 612 would create a new exemption from
the ABC test for a bona fide business-to-business arrangement that
involves a voluntary deposit, to be made available to entities that
utilize their own employees to produce, locate, or procure tangible
personal property, which it owns, leases, or otherwise has the
lawful right to possess. And, least likely to gain
traction, AB 25 would replace the ABC test with the
multifactor Borello test.

Settlement Agreements

Another year, another potential restriction on settlement
agreements. SB 331, the “Silenced No More Act,”
would amend Section 12964.5 of the Government Code
(enacted by SB 1300 of 2018) to prohibit employers
from including in separation agreements any provision that might
deny the employee the right to disclose information about unlawful
acts in the workplace. The bill would also amend Section 1001 of the Code of Civil
Procedure (enacted by SB 820 of 2018) to extend the prohibition
on confidentiality provisions in settlement agreements to all forms
of workplace discrimination—not just discrimination based on
sex. This bill would build upon CCP Section 1002.5 (enacted by AB 749 of 2019 and amended by AB 2143  in 2020).

Cal/OSHA

Safety Citations and Retaliation Prohibitions: SB 606 would require that Cal/OSHA issue
a citation to an egregious employer (defined as an employer
that intentionally made no reasonable effort to eliminate a
known violation) for each willful violation, and each employee
exposed to that violation would be considered a separate violation
for purposes of the issuance of fines and penalties. It also
establishes a rebuttable presumption of retaliation if an employer
takes adverse action against an employee within 90 days of the
employee doing certain things, such as disclosing a positive test
or diagnosis of a communicable disease, requesting testing as a
result of exposure, or reporting a possible violation of an OSHA
standard.

COVID-19 Income Tax Credits: AB 62 would allow a credit against
corporate taxes beginning January 1, 2021, in an amount equal to
the total amount paid or incurred to comply with the regulations
adopted by the Cal OSH Standards Board on November 19, 2020,
relating to COVID-19 prevention.

Employee Benefits

Large Group Health Insurance:  SB 255 would authorize an association of
employers to offer a large group health care service plan contract
or large group health insurance policy consistent with ERISA if
certain requirements are met, including that the large group health
care service plan contract or large group health insurance policy
has been in continuous existence since January 1, 2014.

Workers’ Compensation & Unemployment

Also borne out of the pandemic was a clear need to update
California Workers’ Compensation and Unemployment Insurance
rules, leading to a number of new bill proposals.

Hospital Employee Injuries: SB 213 would define “injury”
for a hospital employee to include infectious diseases, cancer,
musculoskeletal injuries, post-traumatic stress disorder, and
respiratory diseases. The bill would, for purposes of workers’
compensation, create rebuttable presumptions that these injuries
that develop or manifest in a hospital employee who provides direct
patient care in an acute care hospital arose out of and in the
course of the employment.

Civil Litigation

Streamlining Discovery:  SB 241 is a spot bill aimed to enact
legislation that would streamline discovery processes to reduce
costs to the courts and litigants. A welcome change to litigators
and businesses alike.

Workplace Solutions

While there are some small glimmers of hope, many introduced
bills are worrisome for the business community. While employers
should prepare for the passage of SPSL retroactive to January 1,
2021, it is not yet time to fret about the rest—the
legislative session is in its infancy, and each measure—apart
from, perhaps, SB 62—will almost certainly be amended.

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