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New California Labor Laws for 2021

As we predicted, COVID-19 has changed the labor law landscape for 2021. Most of the material for this article came from the National Law Review.

Notice Requirement for Workplace COVID-19 Exposure

AB 685 requires employers whose employees may have been exposed to COVID-19 in the workplace to notify their employees accordingly and report to local health officials. Serious compliance question: How does an employer KNOW the employee was exposed in the workplace when he or she has encountered enumerable people outside the workplace?? I searched in vain for OSHA regulations providing any guidance to employers or employees as to how to make this assessment. However, current reporting requirements can be found here:

OSHA can order a facility closed if it deems the potential for COVID-19 infection an “imminent hazard” for employees at that facility. Same question: How OSHA determine the COVID-19 infection is an “imminent hazard” for employees at that facility?

Notice Requirement to Employees For Any Employee COVID-19 Exposure From Any Source

All employers except for health facilities must take the steps outlined below within one business day of receipt of notice that its workforce was exposed to an individual who either tested positive for COVID-19, was diagnosed with COVID-19 by a licensed healthcare provider, was ordered by a public health official to isolate due to COVID-19, or was determined by the county public health department to have died due to COVID-19. Notice of potential exposure may come to an employer from the employee, the employee’s representative, the employee’s emergency contact, the testing protocol, or the employer of a subcontracted employee that was on the worksite. Notice to employees must be in English and the language understood by the majority of the employees. An employer must retain a record of the written notice for at least three years. Consult legal counsel as to the specific responsibilities.

New Notice Requirement to the Government for a “COVID-19 Outbreak”

Employers must, within 48 hours, report a “COVID-19 Outbreak” as defined by the State Department of Public Health (three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period.)

New Authority for OSHA

The Division of Occupational Safety and Health may determine whether a worksite or any part thereof exposes workers to COVID-19 such that it creates an “imminent hazard.” It may prohibit operations at or entry to that worksite at the immediate area in which the hazard exists by posting a notice to the employer in a conspicuous place. Critical government functions essential to ensuring public health and safety or the delivery of electrical power or water are exempt.

Beginning January 1, 2021, and until January 1, 2023, if OSHA alleges that there has been a “serious violation” due to COVID-19, it need not deliver to the employer a standardized form containing the alleged violation descriptions prior to issuing its citation as would otherwise be required. In all other cases OSHA permits an employer to challenge OSHA’s allegations at hearing before a citation can be issued. In all COVID-19 related cases the employer no longer has a right to a pre-citation hearing.

Covid-19 Presumptions Of Workers’ Compensation Compensability

SB 1159, establishishes a rebuttable presumption of compensability for (1) certain first responders and healthcare workers (listed in Labor Code § 3212.87) or (2) whose employers have five or more employees who test positive for COVID-19 within 14 days of a workday occurring at a worksite that is not their home (unless a caregiver) or who test positive during an “outbreak” at their workplace.

Update On Independent Contract Workers

AB 2257 created additional exemptions from AB 5 for certain occupations and contractual relationships. Voters also passed Proposition 22 which defines app-based drivers – for companies such as Uber, Lyft, and Door Dash – as independent contractors.

No Re-Hire Provisions Clarified

California Code of Civil Procedure Section 1002.5 prohibits “no-rehire” provisions in settlement agreements (not standard severance agreements), except (1) where an employer has made and documented a “good faith determination” that the former employee engaged in sexual harassment or sexual assault before the former employee files a complaint against his former employer; (2) when the former employee engaged in “any criminal conduct; (3 the prohibition against “no-rehire” provisions in settlement agreements does not apply where the former employee did not file their complaint in good faith.

New Diversity Requirements For Boards Of Public Companies

AB 979 — publicly-held domestic or foreign corporations whose principal executive offices are located in California must have a minimum number of directors from an underrepresented community” defined as “an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.” These new requirements are in addition to the requirements enacted last year, requiring female representation on such corporate boards.

Failure to timely comply with this new law may result in fines up to $100,000 for a first violation and additional fines thereafter.

Extended Period To File DLSE Complaints And Attorneys’ Fees For Whistleblowers

AB 1947 (1) revises Labor Code section 98.7 to increase the time to file a complaint with the Division of Labor Standards Enforcement from six months to one year; and (2) authorizes courts to award reasonable attorneys’ fees to plaintiffs who bring successful retaliation claims under Labor Code section 1102.5.

Expanded Successor Liability For Wage And Hour Judgments

AB 3075 — Successor businesses may be liable for their predecessor’s unpaid wage and hour judgments. A “successor” entity as one that: (1) uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor; (2) has substantially the same owners or managers that control the labor relations as the judgment debtor; (3) employs as a managing agent any person who directly controlled the wages, hours or working conditions of the affected workforce of the judgment debtor; and (4) operates a business in the same industry as the judgment debtor and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor.

New Pay Data Reporting Requirements For California Employers With 100 Or More Employees

SB 973, requires California employers who have 100 or more employees, and who are required to file an annual Employer Information Report (EEO-1) under federal law, to submit an annual report containing information by race, ethnicity, and gender in 10 federally identified job categories: executive or senior-level officials and managers; first or mid-level officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers. Employers must also report the number of employees by race, ethnicity, and gender 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, which ranges from a low of “less than $19,239” to a high of “more than $208,000” based on W-2 wages. This report must also include the total number of hours worked by each employee in each pay band during the reporting year. Employers with multiple establishments must submit a consolidated report for all employees and a separate report for each establishment. Employers must submit their pay data reports to the DFEH on or before March 31, 2021, and then annually thereafter.

Threshold For Employer Coverage The California Family Rights Act Now 5 Or More

CFRA now covers leave to care for an employee’s child (including adult children), spouse or domestic partner, parent, grandparent, grandchild, or sibling who has a serious health condition, active duty of an employee’s child, spouse or domestic partner, or parent in the Armed Forces of the United States. New Parent Leave Act will be superfluous and is repealed.

Paid Family Leave expanded to cover absences to support active duty or call to covered active duty of an employee’s spouse or domestic partner, child, or parent in the Forces of the United States

Employer Now a Child Abuse Mandatory Reporter

Human Resources employees of a business of 5 or more employees that employs minors must designate an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties for the purpose of reporting sexual abuse.

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