Opinions and Legal Insights

New Employment Laws to Look Out for in 2021

On January 1, 2021, various new and amended employment laws will go into effect in California. Below is a summary of some of these laws that employers should make themselves aware of heading into the new year.  All laws discussed in this post go into effect on January 1, 2021, unless otherwise noted.

AB 685: COVID-19 Reporting

AB 685, codified under Labor Code § 6409.6, sets out new requirements for employers to notify their employees, employees of subcontracted workers, and union representatives of suspected and diagnosed cases of COVID-19 and also to report workplace “outbreaks” of COVID-19 to local health departments.  Employers who receive “notice of potential exposure” that a “qualifying individual” [i.e. an employee who: (1) has a laboratory-confirmed positive case or a diagnosis from a licensed health care provider, (2) received an isolation order from a public health official, or (3) died due to COVID-19] must, within one business day, take the following actions:

  1. Notify your employees and the employer of subcontracted workers that they may have been exposed to COVID-19: Provide written notice to your employees and the employer of subcontracted workers (e.g., temporary staffing agencies) who were at a “worksite” within the “infectious period” of any employee who may have been exposed to COVID-19.  You can inform workers of the dates that an individual with COVID-19 was at the worksite, but you should not share information that could identify the affected individual (e.g., do not identify the person by name or describe them in a way that would lead towards their identity).
    • The written notice can be hand-delivered or given by email or text message and should be in both English and any other language understood by the majority of employees.
  1. Notify union representatives: Provide written notice to union representatives, if any.
  2. Provide information about benefits and other options: Provide all employees who may have been exposed (and to employers of subcontracted employees and union representatives, if any) with information regarding COVID-19-related benefits to which they may be entitled, including but not limited to worker’s compensation, COVID-19-related leave, and paid sick leave, as well as the employer’s anti-discrimination and anti-retaliation policies.
  3. Notify employees of your disinfection and safety plan: Notify all employees, the employers of subcontracted employees, and union representatives, if any, of the company’s COVID-19 disinfection protocols and safety plan that the company plans to implement and complete to prevent further exposures, per federal Centers for Disease Control and Prevention (“CDC”) guidelines.

If there is an “outbreak” of COVID-19 cases at the same worksite within a 14-day period, you must also notify your local health department.  You must report the “outbreak” to your local health department within 48 hours.  You must update the local health department with subsequent COVID-19 cases thereafter.

For a further explanation of this law or defined terms, such as “infectious period,” “notice of potential exposure,” “qualifying individual,” or “worksite,” please see our blog post here.

AB 1947: Attorneys’ Fees for Whistleblower Retaliation & Extended Time Period to File a DLSE Claim

AB 1947 amends Labor Code § 1102.5 to authorize courts to award attorneys’ fees to whistleblowers who prevail on retaliation claims under Labor Code § 1102.5.  In addition, AB 1947 extends the time period to file a DLSE claim.  For a more detailed explanation of the authorization of attorneys’ fees for whistleblower retaliation claims, please see our blog post here.  For a more detailed explanation of the extended time period to file a DLSE Claim, please see our blog post here.

AB 2017: Sick Leave and Kin Care

AB 2017 amends Labor Code § 233, which permitted employees to use half of their annual accrual of sick leave to care for a family member, to give employees the sole discretion to designate leave taken to care for a family member as sick leave.

AB 2143: “No Rehire” Provisions in Settlement Agreements

Currently, California Code of Civil Procedure § 1002.5 prohibits “no rehire” provisions in settlement agreements.  These provisions generally state the separating employee will not apply to work for their previous employer, or any related entity, and the employer’s decision to not hire the employee is not discriminatory or retaliatory.  AB 2143 amends this law to permit “no rehire” provisions in settlement agreements when the “aggrieved person” did not bring their claim in good faith.  AB 2143 also clarifies that the current “no rehire” exception for sexual harassment and sexual assault claims requires that the employer made a documented and good-faith determination that the individual engaged in sexual harassment or sexual assault before the aggrieved person filed a claim.  AB 2143 also expands the “no rehire” exception to include criminal conduct, subject to the same timing/documentation restrictions as sexual harassment/assault.

AB 2399: Amendments to Paid Family Leave Law

AB 2399 amends the Unemployment Insurance Code §§ 3302 and 3307, which relate to paid family leave.  Prior to the amendment, the Paid Family Leave program provided wage replacement benefits for workers who take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement.  Effective January 1, 2021, the Paid Family Leave program will be expanded to provide wage replacement benefits to workers who take time off to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the worker’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

AB 2537: General Acute Care Hospital Workers, PPE Requirements

AB 2537 requires General Acute Care Hospitals to provide personal protective equipment (“PPE”) to workers who provide direct patient care services or whose services directly support such care.  These employers must also be prepared to report their highest seven-day consumption of PPE in the 2019 calendar year upon request by the applicable regulating agency.

AB 2992: Expansion of Protections to Victims of Crime or Abuse

AB 2992 amends Labor Code §§ 230 and 230.1, to expand protections for victims of crimes or abuse.  Specifically, the bill prohibits employers from taking action against employees who were the victims of a crime, or whose family members were the victim of a crime, when they take time off following the crime.  Presently, Labor Code § 230 prohibits an employer with 25 or more employees from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for any specified purpose, including seeking medical attention for injuries caused by the domestic violence, assault, or stalking and appearing in court pursuant to a subpoena.  AB 2992 expands employee protections to prohibit an employer from discharging, or discriminating against, an employee who is a victim of crime or abuse for taking time off from work to obtain or attempt to obtain any relief.  Relief includes, but is not limited to, a temporary restraining order, restraining order, obtaining psychological counseling, engaging in safety planning, seeking other injunctive relief, and to help ensure the health, safety, or welfare of the victim or their child.  In addition, the bill prohibits an employer from taking action against an employee when an unscheduled absence occurs, if the employee provides certification that they were receiving services for injuries relating to the crime or abuse or if the employee was a victim advocate.

SB 973: Expansion of EEO-1 Reporting Requirements

SB 973 expands the reporting requirements for Employer Information Reports (EEO-1).  Specifically, private employers with 100 or more employees that are required to file an annual EEO-1 report pursuant to federal law are required to comply with this bill.  SB 973 requires that the pay data report, submitted to the Department of Fair Employment and Housing, include: (1) the number of employees by race, ethnicity, and sex in 10 job categories, (2) the number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey, (3) the total number of hours worked by each employee counted in each pay band, and (4) the employer’s North American Industry Classification System (“NAICS”) code.  This revised pay data report is initially due on or before March 31, 2021, and will be due on or before March 31 each year thereafter.

SB 1383: Expansion of CFRA Protections

The California Family Rights Act (“CFRA”) currently makes it an unlawful employment practice for any employer with 50 or more employees (within 75 miles of the worksite), to refuse to grant a request by an employee, who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves, a child, a parent, or a spouse.  SB 1383 amends CFRA to apply to all employers with five or more employees.  Additionally, SB 1383 requires an employer who employs both parents of a child to grant CFRA leave to each employee for that child’s health condition, birth, or placement.  Lastly, SB 1383 makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

Importantly, as CFRA will apply to all employers with 5 or more employees as of January 1, 2021, it is imperative that employers who were previously not covered by CFRA protections, but now are, become acquainted with the law.

SB 1384: Labor Commissioner’s Ability to Represent Claimants in Arbitration

SB 1384 amends Labor Code § 98.4 to permit the Labor Commissioner to represent a claimant who is financially unable to represent themselves in a hearing where a court order has compelled arbitration to determine the claim and the Labor Commissioner determined that the claim has merit.  The bill also requires that a petition to compel arbitration be served on the Labor Commissioner.  In recent years, many employers have implemented arbitration agreements with their employees.  Employers should be aware that to the extent they compel DLSE claims to arbitration, there is a chance the Labor Commissioner could elect to represent the employee in that arbitration.

Minimum Wage Increases

As of January 1, 2021, California’s minimum wage increases to $14 for employers with 26 or more employees and $13 for employers with 25 or less employees.  Local minimum wages may also increase.  Check your local rules for other minimum wage requirements.

Employer Takeaways

Employers should be mindful of the implications of these changes in the law and should adjust operating practices and procedures accordingly.  Employers should also update their employee handbooks and policies.

As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal, which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.