Episode 101: 3 New Labor Laws Employers Should Know

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers General Counsel and Executive Vice President. And today on the podcast, I'm joined by two of our awesome employment law experts, Bianca Saad and Matthew Roberts. Welcome, Bianca and Matt.

Thank you, Erica. Happy to be here.

Hi Erica. Thanks for having us.

It's always fun when the three of us get together to kibitz about different laws and issues impacting California employers. It's that time of year again. It's year end. This is always a good time for us to really highlight some of the new laws that are going to be taking effect in January 2021. We wanted to take this time to address just a couple. Of course, we could spend hours and in fact we will in January when we do our employment law update, talking about all the various ones. But today we thought we were just going to hit on some of the highlights. And I also want to encourage all of our listeners to visit Cal Chambers website for more information on all the new laws impacting employers that have either already taken effect as a result of COVID 19 or will take effect on January 1, 2020. So let's kick it off. I want to talk first, because one of the unique things that we saw this year, and we've mentioned this on the podcast before, is we had a number of laws that took effect immediately, immediately upon being signed by Governor Newsom, and we don't see as many as we did this year. Usually the laws are signed by the governor in the fall and they take effect the following January 1st of the following year. But this year, because of COVID 19, we did have a number of laws that took effect. So I want to kick off by first highlighting two COVID 19 specific laws that took effect back in September when they were signed, and therefore are applicable now. And those two laws have to do with COVID 19, Workers Compensation and supplemental sick leave. Bianca, can you tell me a little bit or tell our listeners I should say a little bit about what the new COVID 19 workers compensation law looks like, as well as the COVID 19 supplemental sick.

Yeah, absolutely. So the first one we'll talk about is SB 1159, and that's the one that has to do with the workers compensation. It went into effect immediately upon signature on September 17th of this year. It does a few main things. First of all, some of you may remember there was that executive order that Governor Newsom signed back in May that created this rebuttable presumption for workers that contract COVID 19. The circumstances have to be that they test positive or diagnosed with COVID 19 within 14 days after performing work at their place of employment, then it's presumed basically that that was contracted during employment. The first thing SB 1159 does is it codified that executive order for those cases between basically March 19, 2020 to July 5, 2020. It also created a rebuttable presumption for first responders and healthcare personnel who contract COVID 19 after July 6 of this year. It creates another presumption having to do with an outbreak. So, so the presumption would apply to employers with five or more employees if there is an outbreak. Now, this is as it's defined by the statute and it's actually broken down based on employer size. So if an employer has 100 employees or fewer, then an outbreak would be considered. If it's four employees testing positive within two weeks, and if an employer has more than 100 employees at a specific place of employment, then that's going to be 4%. So it's very specific. That's an important piece also to pay attention to. And then the last major thing that SB 1159 does is it imposes reporting requirements. So when an employer knows or reasonably should know that an employee tests positive for COVID 19, the employer needs to inform their workers comp carrier within three business days of certain information. And that includes the fact that an employee did test positive. It does not have to be identifying information. It should not be the date of their positive test, the address of the employee's work site, and the highest number of employees that were in the workplace within that last previous 45 day period.

So there is a lot to this new workers compensation rebuttable presumption, isn't there?

Yeah, there are a lot of pieces.

And I know that the Department of Industrial Relations, that's the agency that oversees enforcement of such laws as the workers compensation laws, they do have an FAQ on their website that employers can turn to to seek some additional information or guidance on how to apply this. So let's move on to the COVID 19 supplemental sick leave.

Yeah, so this was the supplemental paid sick leave was really. So this was also, you know, went into effect immediately upon signature. That was actually September 9th. And the supplemental paid sick leave at the state level was really aimed to close that gap that was existing for those employers with 500 or more employees that are not covered by the FFCRA. It does also extend to healthcare providers and first responders whose employers elected to exclude them under the FSCRA if they qualified now, in order for an employee to qualify for this leave, they do need to be performing work outside of their home. So it would not apply to employees who work 100% remotely. And the leave is available in three situations. So the first is if the employee is subject to a federal, state or local quarantine or isolation order related to COVID 19. The second reason is if they've been advised by a healthcare provider to isolate or self quarantine related to concerns due to COVID 19. And then the third one is really interesting because we don't see this in the FFCRA leave, nor do we really see it in many of the supplemental local ordinances that provide sick leave. And that is for a circumstance where the employee is actually prohibited from working by the employer due to health concerns. So for example, let's say maybe there was a positive test in the workplace. And then employees who were close contacts are being asked to say they're being kept out of the workplace. That would be a situation where the employee would qualify for this COVID 19 supplemental sick leave that might not be so easy to land under the eligible reasons for ffcra.

And just as a quick refresher for those that may be unsure what FFCRA stands for, could you just briefly refresh our listeners as to what the FFCRA is?

Absolutely. I got a little bit ahead of myself there. So the Federal Families First Coronavirus Response act. So that's the sick leave that we saw. It was implemented on the federal level. It went into effect April 1st of 2020, and it covers all employees, excuse me, employers with fewer than 500 employees. And it has basically five qualifying reasons that an employee could get up to 80 hours of this paid sick leave for reasons related to COVID 19. So I'll just leave it there.

No, I know, because we could go down a whole nother rabbit hole to talk about the FFCRA because there's so much there. But in essence, California's COVID 19 supplemental sick leave was really there to fill the gap or to cover employees who weren't otherwise covered under the federal COVID 19 emergency sick leave.

That's exactly right.

Okay, thank you, Bianca. There's quite a bit there. Again for our listeners, the two laws that Bianca just talked about have been in place and are currently law as of today. So something to just keep in mind now let's move to quite a hefty do law that's taking effect in January, January 1st of 2021. And that has to do with the California Family Rights act and the bill number is SB 1383. So, Matt, tell me why SB 1383 is such a big deal for California employers.

Yeah, SB 1383 really is the granddaddy of them all in terms of the bills we got this year that aren't COVID 19 related. What the bill does is multifaceted approach to revamping the cfra. So just as a little bit of background, the California Family Rights act or the CFRA is essentially California's version of the fmla. In a lot of circumstances, those who are familiar with the CFRA and FMLA know that they kind of track and run together. There's some subtle differences between the 2, but what SB 1383 did was really make the differences between the two huge. The biggest difference first is that the CFRA now applies to employers with just five or more employees. So for those employers who have never been used to administering any type of family medical leave, these employers are going to have to get up to speed on administering a leave like the CFRA because this goes into effect on January 1st of 2021. In addition to that change that now the CFRA applies to all employers with five or more employees. Is that because of that change? The new Parent Leave act, which was a baby bonding law passed a couple years ago that took effect a couple years ago that covered employers with 20 or more employees, is now gone because the CFRA covers that. So for our employers out there who are used to the npla, this is gone. And now all of our baby bonding leave is going to be covered by the cfra. A couple other major provisions of the CFRA that have been updated is that it greatly expands the list of family members for whom you can take leave to provide care for. So traditionally, under the CFRA and fmla, you could take leave to care for a spouse child, and under the CFRA's definition, the registered domestic partner when they are having a serious health condition that required you to help provide care for them. Well, what SB 1383 did is that it greatly expands that definition to include other types of family members, such as grandchildren, grandparents, siblings and parents in law. And so now we're set up with a situation where an employee may ask for leave care for their grandparent who has a serious medical condition. And now that leave is going to be covered by the CFRA but is no longer covered by the FMLA because the FMLA doesn't provide eligibility for taking leave for that reason. So what the SB 1383 has done is really created two different leave allotments at this point where CFRA is now king, for a lot of us who have been in employment law and human resources for a long time, it's always been leading the way with the FMLA. SB 1383 has really swapped that and the CFRA is now what employers are going to need to use to lead the way because there's so many differences between the expansion of the scope in terms of the employers it covers, as well as the reasons for it. Last major difference or last major addition to the CFRA that we got through 1383 is the ability to take CFRA for a qualifying military exigency. For again, for those employers who are familiar with the fmla, that's already a reason for which an employee can take fmla. Now the CFRA covers that as well. So whenever an employee is taking qualifying military exigency leave, those two leaves are going to run concurrently.

So there's a lot here. And again, another topic that we could spend hours on going over. But I think what's important for our listeners to keep in mind is if you are a listener and you handle human resources or any employee relations leave benefit issue, you have to first ask yourself how many workers do you have in the workplace? So that you know, if you had 50 or less, maybe we should say 49 or less. This is a new leave law for all of you and this is leave 101 that you're going to have to learn about and learn about it in the next month or so before it takes effect. And if you are employers with 50 or more, this is going to be an additional challenge for you because you're now managing FMLA and CFRA as you always had. But there's some new twists and turns with cfra. Is that a fair assessment, Matt?

Yes. And you know, that employee number is a really important thing for them to, for employers to keep in mind because a lot of us were looking at that 50 number with the CFRA. Again, this applies only to our California employees. But what the CFRA expansion with SB 1383 did was do away with that geographic eligibility that we were used to under the fmla. So it used to be with the CFRA that you would need to have 50 or more employees within a 75 mile radius for those employees to be covered by the CFRA. SB 1383 just eliminates that geographic eligibility requirement. So now what we have for employers is those who may have say they have 50 or more employees, but they knew, hey, I only had 10 out in California. We were never covered under the FML anymore because they didn't have the geographic eligibility. Well, now with the CFRA expansion, it doesn't matter. They have 10 employees there in California. All 10 of those employees are going to be covered by the cfra. So it has this double layer of both bringing employers into the fold who never had to deal with this in the first place, as well as providing more experienced administrators the concept that they now have to just understand that wherever our California employees are, as long as they're in California and we have five or more employees total, we're now covered under this law. So we may need to get up to speed on the CFRA as well.

Excellent points, Matt. Very, very helpful. And again, for those employers that are just learning about the California Family Medical Leave act at Cal, we do have quite a bit of information regarding the act as it stands right now, and we've also written a number of blog posts and we've been on the podcast a few times as well just talking about this leave expansion and the leave law. So with that, again, we could spend many minutes talking about all of the three bills that we talked about today, but unfortunately we run out of time. For those of you listeners wanting more, we do have an excellent white paper that Cal Chamber staff has put together that does give employers a comprehensive summary of new laws that may impact you. So I encourage everyone to go to calchamber.com to download the white paper to have an idea of what is on the horizon. And with that, thank you, Matt and Bianca, for being on the podcast with me today. And thank you all for listening and joining us on the workplace. Please visit calchamber.com to learn more about new laws and to comment, subscribe and share our podcast.