On August 31, 2020, California’s legislative session closed with a flurry of bills—the majority driven by COVID-19. These bills have been sent to the governor, who now has until the end of September to sign them into law or allow them to become law without his signature. Below are three key bills that we expect the governor to sign, or otherwise allow to become law. These bills will also be addressed in our forthcoming annual legislative update. We highlight them here because they all represent substantial shifts in current law, and employers may wish to begin preparing sooner rather than later to assess any potential impacts.
SB 1383 – Expanded Family Leave Requirements
Once enacted, this bill will expand the reach of the California Family Rights Act (“CFRA”) to include employers with five or more employees. The CFRA, which previously applied to employers with 50 or more employees, makes it unlawful for the employer to, among other things, refuse to grant an employee’s request for up to 12 weeks of unpaid, protected leave if the purpose of the leave is to bond with a new child or to care for themselves or a family member. This bill, in addition to substantially increasing the number of employers that are subject to the CFRA, also will require an employer who employs both parents of a child to grant up to 12 weeks of unpaid, protected leave to each employee.
If it becomes law, SB 1383 will take effect January 1, 2021.
AB 3216 – Addressing Layoffs Due to State of Emergency
This bill sets certain requirements for employers in many industries that reduced their staff due to the COVID-19 pandemic and the resulting state of emergency (and other “states of emergency” in the future). Once enacted, this bill will require many employers (specifically, hotels, private clubs, event centers, airport hospitality operations, airport service providers, or those providing building services to office, retail, or other commercial buildings) to offer previously laid-off employees specified information about available job positions and to offer those available positions to the previously laid-off employees who are qualified, subject to specified timelines and procedures. To qualify as a “laid-off employee” under this bill, the employee must have been employed by the employer for six months or more in the 12 months leading up to the state of emergency (in this case the COVID-19 pandemic), and have been laid off due to non-disciplinary reasons that are related to the state of emergency. There are also certain requirements where there was a change in control of the business.
If it becomes law, AB 3216 will take effect January 1, 2021.
SB 1159 – Workers’ Compensation for COVID Critical Workers
This bill will change how the existing workers’ compensation system views illness and death resulting from COVID-19 for many essential workers (generally, health workers, first responders, and other frontline workers). This bill will expand the definition of the term “injury” to include illness or death resulting from COVID-19 and create a disputable presumption that the “injury” “arose out of and in the course of employment,” which means that the “injury” is presumably covered under the workers’ compensation system. This presumption would apply in specified circumstances and would be subject to certain other requirements, including specified certification requirements. In addition, where a place of business experiences certain levels of positive testing among the workforce, the bill would allow for a presumption of “injury” for all employees at the place of business.
This law would take effect immediately upon signature by the governor and remain in effect until January 1, 2023.
It is important for employers to stay up to date on these potential changes to ensure they are prepared to comply if, and when, they become law.