Below are summaries of a few significant new employer laws that will take effect on January 1, 2021.
COVID-19 Workplace Exposure Notice and Reporting
AB 685 (Reyes) created COVID-19 notice and reporting obligations for all California employers. The new law will require contractors, within one business day, to provide written notice of a potential COVID-19 workplace exposure to all employees, employees’ exclusive representative (the union), and any subcontractors who were at the same worksite as a “qualifying individual” within the “infectious period.” A “qualifying individual” is defined as any individual who (1) has a positive viral test for COVID-19, (2) is diagnosed with COVID-19 by a licensed health care provider, (3) is ordered to isolate for COVID-19 by a public health official, or (4) has died due to COVID-19. “Infectious period” means the time a COVID-19-positive individual is infectious, as defined by the State Department of Public Health which is currently 10 days. If a qualifying individual has been at the employer’s worksite during the infectious period, the employer must provide the potential COVID-19 workplace exposure notice. Contractors may communicate this written notice by e-mail, text message, or memorandum. The notice must include information regarding COVID-19 benefits under federal, state, or local laws that are available to employees as well as information regarding the employer’s disinfection and safety plan that it plans to implement and complete per the guidelines of the Centers for Disease Control and Prevention. Employers are required to maintain records of notifications for at least three years.
The law further imposes the obligation for employers to report when there has been an “outbreak” in their workforce. Specifically, if an employer is notified that there have been three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period, the employer must, within 48 hours, notify the local public health agency of the names, number, occupation, and worksite of employees who meet the definition of a “qualifying individual.”
As previously mentioned, AB 685 (new Labor Code Section 6409.6) also requires all employers to provide a written notice to their signatory union that represents any exposed employees and also requires that the notice to the union contain the same information as is required in a Cal/OSHA Form 300 Log, which includes the employee’s name. However, many contractors have expressed concerns about possible HIPAA violations in disclosing the full identity of the individual infected with COVID-19.
CDPH has amended its AB 685 Compliance Guidance to advise that employers provide “the exclusive labor representative” (the union) with the same information as is provided to exposed employees and subcontractors, and goes on to clarify that employers should “not share information that could identify the affected individual.”
These COVID-19-specific changes to the Labor Code will remain in effect until January 1, 2023.
In preparation to meet these new requirements, contractors should prepare a template COVID-19 notice that is ready to distribute, make a list of all employees, unions, or subcontractors that may need to be notified, prepare a disinfection or safety plan, and create training and checklists for supervisors and managers covering the new requirements. It is essential for contractors to prepare in advance so that they can meet the 24-hour notice requirement in the event there is an exposure event.
In an effort to assist with this, we have attached draft notices for your use:
Expansion of the California Family Rights Act
SB 1383 (Jackson) expanded the coverage of the California Family Rights Act (CFRA). Currently, employers with 50 or more employees are subject to CFRA and its federal equivalent, Family Medical Leave Act (FMLA). Both provide employees with up to 12 weeks of unpaid leave. When SB 1383 goes into effect on January 1, 2021, CFRA will be expanded from employers with 50 or more employees to employers with 5 or more employees.
In addition, the bill expanded the scope of family members for whom the employee can take leave. CFRA currently allows employees to take unpaid leave for several purposes, including to care for a “family member” with a serious health condition. CFRA currently defines “family member” to include a minor child (unless the child is dependent), a spouse, or a parent. Beginning in 2021, the list of family members will be expanded to include grandparents, grandchildren, or siblings. In addition, the definition of a child will be expanded to cover all adult children, regardless of whether they are dependent.
Smaller contractors who are unfamiliar with CFRA will need to develop policies and procedures for these new leave requirements and should consult with employment counsel to ensure compliance.
Equal Pay Reporting
SB 973 (Jackson) requires pay data reporting by employers in an effort to encourage and ensure wage parity for women and minorities. The new law requires employers with 100 or more employees who currently, under federal law, must file an annual Employer Information Report (EEO-1), to submit similar information to the California Department of Fair Employment and Housing (DFEH). The annual report to the DFEH requires the number of employees (and hours they worked): (1) by race, ethnicity, and sex; (2) in each of the job categories in the federal EEO1 Report; (3) whose annual earnings fall within each of the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey. Employers who already file the annual EEO-1 Report under federal law can comply by filing a copy of the EEO-1 report with DFEH.