Episode 187: New Laws California Employers Will Need to Follow in 2024

Welcome to the Workplace, a podcast by KAL Chamber. I'm Matthew Roberts, Associate general counsel in labor and Employment with the California Chamber of Commerce. Hello listeners. The dust has settled on the 2023 legislative session and Governor Newsom has acted on all of the bills presented to him, including several employment related bills. So to discuss some of the bills that will have the broadest impact to California employers, we welcome back Ashley Hoffman, Cal Chamber's excellent employ employment law policy advocate. Thanks for being here with me today, Ashley.

Thanks, Matt. It's good to be back.

Well, Ashley, let's just dive right into it. The most commonly discussed bill that I'm seeing with members to this point is our mandatory paid sick leave expansion that went through with SB616, a bill that we had discussed quite frequently here on the show over the course of the year. So, Ashley, provide us an update on how paid sick leave is going to work going into January 1st of next year.

Sure. So the crux of SB 616 is that employers had to provide about three days of paid sick leave every year to their employees and that number has been increased to five. So effective January 1, you know, there can be a lump sum instead of, you know, 24 hours or three days. Right. That's increasing up to 40 hours or five days. So it will be either 80 hours or 10 days for accrual caps or 40 hours or five days for usage caps. So changes to the alternative accrual members and some grandfather accrual methods as far as how that works. And then also an interesting piece is the piece related to local ordinances. So we had argued for preemption of local ordinances. I know that's a headache for a lot of our members. They did give us some preemption of local ordinances as far as things like rate of pay, available leave balances, wage statements and employee notice requirements. But actually, one of our, you know, members, Mendelsohn, they did do a really excellent article on paid sick leave that I recommend reading. And it actually talks about how this is pretty much going to have no impact because there's not a local a lot of local ordinances that actually differ from state law in these situations. So I recommend reading that, which kind of just walks through, you know, maybe in some localities there could be a difference here, but for, for, for most purposes, any of these preemption provisions are probably not going to make a huge difference.

And something I like to talk about with members here is as you kind of run through the numbers with 40 hours or five days or in the case of the accrual caps, where you accrue one hour for every 30 hours worked, you can cap it at 80 hours or 10 days. Why is there a difference between the hours and the days? Why not just say 24 hours or 40 hours?

So commonly when we think of a work shift we think eight hours, but that's not true for every employee. So there's some importance there. And the difference, you know, between hours or days, especially potentially in like a healthcare space where people are often working something closer to a 12 hour shift.

Excellent. So we've been receiving some open questions about kind of how some things are going to work. And one of the more common ones here is the lump sum question that I've been seeing a lot and Ashley and I have been talking about. We know with the lump sum that when you use that method for the mandatory paid sick leave, you're choosing to at the first day of whatever leave year you've picked, whether it's January 1st or anniversary hire or some other 12 month period, you erase all of their remaining time bank that they may have under that and then you give them a new full bank. So for example, currently we sit with you would give 24 hours or three days. If I had any time left in that bank coming up onto the first day of the next leave year, I would lose whatever I have left, but then I would get another 24 hours or three days, whatever is relevant to my workday situation. As you explained. Do we have any idea how that's going to work with regards to the January 1st effect date with this bill where we go from 24 or 3 days to 40 hours or 5 days and somebody who has maybe an anniversary of hire. Right. So I was hired at the chamber in July, I get my lump sum in July. What happens on January 1, 2024 with this?

That's a great question, Matt. As you said, you know, a lot of people choose to base it off of date of hire. Some people also will choose to do the fiscal year so July 1st. And unfortunately the statute is not clear. It is not clear whether you essentially now have to make sure that you are complying right. By providing them that five days or 40 hours effective January 1st, or do you have to wait right until next July to do that? So we are collecting some questions from our members, plan to send them over to DIR to hopefully get some guidance on that before January 1st. I agree with you. That is by far the most common question that we have received.

Well, excellent. So stay tuned. And of course Cal Chamber will put out alerts if we do end up getting any guidance from the labor Commissioner, especially in advance of the January 1st effective date. Okay. Ashley, last year you and I discussed a new state leave law added to our ever growing list of state leaves when we had a mandatory bereavement leave law that went into effect on January 1st of this year. Now, AB848 this year is a bill we have discussed previously here as well, and it seems to kind of piggyback on those bereavement leave efforts last year with a newly mandated reproductive loss leave. Ashley, let's kind of run through the details of what this leave entails.

So I think it's important to remember that this is a separate leave from existing bereavement leave. I've had a few questions asking if this is just expanding the qualifying reasons for taking bereavement leave, and that is not the case. This is its own leave. It applies to employers with more than five employees. Essentially, an eligible employee is someone who suffers from what is defined as a reproductive loss. Eventually you are, for every event, you are entitled to up to five days of bereavement leave. You do not need to take it right away, but you do need to take it, I believe, within three months of the event.

So these situations are include like miscarriage or stillbirth, which potentially, arguably may have already been covered under existing bereavement leave for, you know, loss of a child. But it also would most significantly include unsuccessful assisted reproduction or failed surrogacy or failed adoption. I think when it comes to unsuccessful assisted reproduction, it is important to note that the bill specifically talks about artificial insemination or, you know, embryo transfer. And so that means that this is going to cover a procedure, for example, like an IVF or iui. But sometimes people receive assistance versus maybe taking medications to help, you know, with some reproductive issues that they're having. This wouldn't actually cover just those situations unless you meet the exact definitions in the statute. So you want to look at this very closely, I think, to see if it applies to the scenario or not. It's also important to note that unlike bereavement leave, there's not an ability to ask for documentation. I think some of the reasoning there was it's not kind of as simple to get documentation in some of these scenarios, especially after they've already happened. So I think that was part of the thinking there. But there is a cap, so you can only use up to 20 days a year. I think some of the thinking is it's you know, for employees who are utilizing this, you know, they may or may not hit that cap per year, whereas the bereavement leave from prior years that did not have an overall usage cap.

And a question that I've been getting on the helpline quite frequently as it relates specifically to this leave is to which parent or, you know, future parent would this have applied? Is this only, you know, in the case of a miscarriage, is this only for the birthing parent or is this for the non birthing parent as well?

It is for the non birthing parent as well. So the person who I think the statute says something along the lines of, you know, who would have been a parent to that child. So, you know, for example, failed surrogacy. Right. The, you know, potentially parent or a couple who was planning to parent, you know, that child after surrogate would have given birth, it would apply to them.

So, Ashley, something else that you had mentioned with regards to the employee is eligible for five days of leave for a qualifying reproductive loss event that doesn't have to be taken right away, but it can be taken within three months of that event. As far as the five days itself, do those have to be taken consecutively? Because in our bereavement leave law that we got this year, you don't have to take them consecutively.

Correct. You do not have to take them consecutively.

Okay. All right, Ashley, let's move on to the last set of bills that we'll discuss today. And the first one actually involves a bill that was enacted last year, AB 2188, and then a follow up bill that expands on that law this year, SB 700. Now, both these bills involve a person's use of cannabis and impact California's Fair Employment and Housing act and our recruiting practices. So Ashley, let's start with refreshing on what changes January 1, 2024, just with AB 2188.

Sure. It's important to remember AB 2188 actually had a delayed implementation. So that will take effect, you know, January 1st.

And that creates a new protected class under the Fair Employment Housing act about the off duty use of candidates in the workplace. So when we think of Fiha, typically we think of categories like race, sex, religion, etc. That cannot base an employment decision on this adds in the off duty use of cannabis. I think the thinking was that especially with a lot of the tests that happen, like a hair test, for example, it can stay in your system up to a number of weeks. And so if an employer is testing you and you lawfully used cannabis you know, the Saturday prior. Right. Then you could potentially be disqualified for a job or something along those lines, even though you were using this, you know, lawfully. Also, too, if you are going to do drug screenings, AB 2188 does impact which tests you can use. You have to screen only for the psychoactive cannabis metabolites. So it's specific kinds of testing that you can do. Again, you couldn't do something, I believe, like a hair test where it could stay in your system up to a number of weeks. There are some exceptions. So some employers had concerns because they have federal contracts in which they are required to test because cannabis is not cannot lawfully be used under federal law. Also, the those in the construction and building trades are also exempted. So again, very important that if you are doing drug screenings, that may either be something that you need to finish before the end of the year or you are going to need to make sure that you are using the correct test going forward.

Yeah, absolutely. And January 1st is going to be on us real quick here, Ashley. So you only got about a couple months left to kind of figure out whether you're going to continue testing for cannabis. And if you are to find those tests that comply with the law. Now, SB 700 that was enacted this year adds on to this specific law. What else now is new related to a person's cannabis use in the employment arena?

So SB 700 will probably look familiar in the sense that California has several times restricted what an employer can ask about of a job applicant. You know, salary history, criminal history, things like that. So now we're adding to that list Cannabis use. So SB 700 prohibits employers from requesting information from applicant about their prior use of cannabis, including in a job application or an interview. Also, information received about their cannabis use from criminal history is off limits unless you are specifically allowed to consider it under the Fair Chance Act. Again, that could be a situation where maybe that person is going to be, you know, working on federal contracts or something along those lines where there's a law, there's a federal contract what have you that prohibits someone using cannabis again, because, you know, either under other state laws or under federal law, it is still prohibited.

Well, excellent. That's a good roadmap for employers, I think, to get started with over these next couple of months as we head towards January 1st and the, you know, ever present new compliance season for us. So, Ashley, it was so nice to have you back on the show to discuss these laws that will be impacting California employers starting January 1, 2024. Thank you and thank you listeners for joining this discussion on the workplace. As always, please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.

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