Episode 9: Legislative Trend: Expanded Leaves of Absence

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank. I'm Cal Chamber's executive vice president of Legal affairs and general counsel. And with me today is Jennifer Barrera, Cal Chamber's executive vice president. And we are going to be talking today about some labor and employment legislation that's making its way through the Legislature. Jennifer, welcome.

Thank you so much.

So tell us a little bit about what's going on right now at the Capitol.

Well, right now is a really busy time at the Legislature. They're right in the middle of one of the busy times when they're trying to get all of the bills passed out of policy committees and they have deadlines that they have to meet about mid May to get all of those bills out. And so it's a lot of policy committee hearings and long hearings and a lot of bills that are being contemplated and debated by members of the legislature and of course, the lobbying, the lobbying crew.

So busy time over there.

Busy, busy time.

So speaking of laws that are being contemplated, it's not unusual for there to always be a slew of bills related to labor and employment laws in California. Can we talk about a couple that, you know, have caught our attention and are moving through?

Yeah, definitely. I mean, labor and employment, that policy area is always a hot topic at the legislature and certainly this year is no exception. I mean, there's multiple bills to talk about. But one of the growing trends and the trends that we're seeing this year in the labor and employment arena is the expansion of protected leave of absences in the workplace.

Okay, so would one of those protections perhaps be the mandatory sick leave law that was passed, well, went into effect about what, four years ago?

Right, right. There is a bill that's pending right now to expand upon that paid sick leave law that was passed just approximately four years ago and to extend the number of days that an employee can take off for paid sick leave.

So just to recap, current law, right now it's three days or 24 hours that an employer needs to provide. And in addition, there's all sorts of protections and reporting record, record keeping requirements is what I'm trying to say, applying to the employee's own illness or their family member.

Right.

So I know there's AB555 that's pending, and if I'm reading this correctly, it's seeking to expand that to five days or 40 hours.

That's correct. Yeah. And it doesn't have any distinction with the size of employer. And so it treats a large employer just the same as a small employer with the mandatory number of days that they would have have to provide for an employee for paid sick leave. And it also extends the number of days that they can limit per year to cap. And now instead of just the three days, it's up to 80 hours or the equivalent day for the employee. So it really is adding on to the length and the time that an employer has to provide for employees.

So let me get this right. So we're expanding the number of days. So it's going from three days or 24 hours to five days or 40 hours. And under existing law, you can accrue that. You could cap the accrual to 48 hours. And we're expanding that cap to 80. That's right. So it's a lot more that the employer is going to have to provide to the employee.

Yeah. And I think the other challenging part about the paid sick leave law is that there's so many local jurisdictions that have adopted their own paid sick leave law. So the challenge, of course, is an employer who's operating in multiple locations throughout the state now having to figure out which ordinance applies to their employee at which location, and how that interacts with the state leave mandate that's now pending at the legislature.

Yeah, I think that you're right. I know that when we have questions from members on the helpline, it is a very common one. And when you start to have these local ordinances coming into play, it's picking and choosing what's going to be most beneficial to the employee.

Right.

Well, let's move on to a couple of other leave law type bills that are out there. We know, and we've talked on the podcast before, about the impact the MeToo movement had on the legislature and a slew of proposals that we had last year, training and whatnot. Are we seeing some of those again this year?

Yeah, definitely. I mean, there's a number of bills that are either repeat or consistent with the MeToo movement. So it hasn't gone away. And one of those bills is focused on leave for victims of sexual harassment.

So that would be AB628.

Right.

And if I'm understanding it correctly, or maybe you could tell us a little bit about what it does, but existing laws under the Fair Employment and Housing act, as far as regulating harassment and prevention in the workplace, AB628 seeking to then put some definitions and requirements into the labor code.

Yeah, that's right. It's proposing to add a definition of sexual harassment to the labor code that's inconsistent as you Mentioned with the definition in the Fair Employment and Housing act, which will certainly create confusion for employers when they are trying to obviously implement a harassment free workplace and how they do investigations and how they do corrective action, et cetera, what even qualifies for harassment? And then you have two different agencies that are regulating harassment. The Labor Code, of course, is regulated by the Labor Commissioner, and the Fair Employment and Housing act is regulated by the Department of Fair Employment and Housing. And so two different agencies who may not be coordinated on their efforts can cause a lot of confusion for employers. But in addition to that, AB628 also creates this new unlimited, uncapped leave of absence for an employee who's a victim of sexual harassment and also a family member of an employee who is a victim of sexual harassment to take protected leave from work in order to address whatever issues are surrounding the sexual harassment issue.

Wow. So if I am a victim of sexual harassment in Sacramento and my brother who's located in San Diego hears about it, my brother in San Diego could potentially take a leave because I've been a victim in Sacramento.

Yes. And there is no limitation on how long that leave is. And so if your brother said, I need two weeks off from work because my sister was harassed up in Sacramento, the bill provides for that right now.

And just so I understand, because we know that there's, you know, California Family Rights Act, Federal Medical Leave act, that provide 12 weeks of leave and whatnot. This would be in addition to all of the existing leave laws, brand new.

Leave on top of all of the other additional leaves that we have in California. So, yeah, another challenge for employers. And it's not that we're insensitive to an individual who has suffered from sexual harassment, but as you just mentioned, there is a host of leaves out there that an individual can already take time off work to take care and address their own medical condition. But this one, with no limit and extending it also to a family member to take the leap, it just creates a huge challenge for employers who still need to regulate their workplace and make sure that they have employees there to help operate the business.

And I would think too, without some kind of investigation as to whether there was even alleged harassing conduct, this could be really challenging for employers not really knowing when to apply it and whether it's just somebody who can come and say, I've been a victim.

Yeah, exactly. I mean, there's no certification that's required. It's just merely an individual saying, hey, I was harassing and I now need time off.

Okay. And let's also talk, since we just mentioned the California Family Rights act and all the other leave laws, we also have another bill pending in addition to several others, SB135. Could you talk a little bit about what SB135 is trying to do?

Yeah. This is a theme that we've seen from Senator Jackson year after year, and it's seeking to expand California's Family Rights Act. Right now it applies to employers with 50 or more employees, and this would bring that down to employers with five or more employees, which is a pretty significant jump. It also right now, in order to take leave under the California Family Rights act, an employee has to have worked for the employer for at least 1,250 hours. And this brings that down and says that an employee only has to have provided service to the employer for 180 days. So it's lessening the certification requirements and it is broadening the application of the leave to a much greater universe of employers who weren't used to having to deal with this before.

So we talked before on previous episodes about due Parent Leave act applying to employers with 20 to 49, and that was an expansion from last year.

Right.

So now the proposal is leave for all employers with five or more. Right. So would this effectively do away with the new Parent Leave act then?

No, that's exactly right. As a part of the bill, they repeal the new Parent Leave act and are just now seeking to expand sefra, because really, if they expand to employers with five or more employees, there's no need for the new Parent Leave act any longer.

And we know that under the Pregnancy Disability Leave Law that applies to employers with five or more, there's already leave protections for that. So those same employers would then extend 12 additional weeks if there was an employee that was out for pregnancy disability leave and then wanted baby bonding. Something that doesn't exist now unless you're over 20, right?

No, that's exactly right. So if you count up the eligible time, I mean, just between those two leaves, that's approximately seven months of protected leave for an employer to have to deal with. And it's a significant burden for employers with that limited size.

I would think so, because we know that when we have employees who are on leave and there's never a question of why or what's needed, it's how is the work going to continue to be done. And being able to backfill somebody for such a long period of time, which we know for the smaller employers is a lot trickier than for some of the larger Ones that can maybe move staff around or have other staff absorb some of the work.

Yeah, exactly. And I think that's a great point to make in that these are protected leave of absences, but they're not paid for the employer. And that's often one of the challenges that we get when we raise concerns about it as well. It's no cost to the employer because you don't have to pay for the leave. But really there is significant cost for the employer, as you just mentioned, to cover the existing work because that work doesn't go away just because the employee is on leave. They have to either pay overtime to other existing employees to cover the work or they have to bring somebody in for a limited basis to cover that work while the individual is out. And that can often be at a premium pace since it's for a limited basis. So there are costs associated with it, certainly for the employer.

So it's a good thing to get the word out now, at least for some of those smaller employers, so they can start thinking of the potential things that they're going to need to do even within their human resources departments of getting ready to now have this additional leave that will need tracking and notices and posting and everything else that goes along with it.

Yeah. And I mean, if you take all three of these together and look at the impact, especially on the small employers who haven't had to deal with these, you know, significant or expanded leave before, it's a challenge. You have an additional two days of paid sick leave and a 12 week leave of absence for family medical reasons and then the unlimited leave under AB628 for victims of sexual harassment. It's a lot.

It's a lot. It's a lot. And it's administratively a lot too, for the employer because the employer needs to comply. Otherwise there's liability that attaches to, to all of these we want to talk about.

Yeah, they're all enforced essentially through a private right of action with attorney's fees and costs associated with that. And so, yeah, that on the back end, if anything is if there's a misstep or a mistake, is also a challenge for those smaller employers.

All right, so it's early in the season, right? Yes. So briefly, can you just describe what the process looks like between now and whenever we know the bills are going to become law?

Yeah, definitely. So right now is right before the House of origin deadline. So the bills that start out neither the Senate or the assembly have until the end of May in order to make it through their respective Houses that means getting out of the policy committees and then they will go to the floor where the entire Senate and the entire assembly will vote up or down on those bills. If they make it out of the respective houses, then they basically do a swap and all the assembly bills go over to the Senate and all the Senate bills go over to the assembly and then they go essentially through the same process with regards to policy hearings. And if they make it through those, then they ultimately will wind up again on the assembly floor for a full vote and the Senate flow floor for a full vote. Excuse me, that's a mouthful. And that happens at the end of August. And then again, if they're passed off of those floors, they will make their way down to the governor's office where he will have time to consider them in September to ultimately sign the bills or veto the bills. All right, so we have some time.

We have some time. So while everyone's enjoying summer break and vacations, we also are working through some of these issues. So a lot can change between now and the fall.

Definitely. Definitely.

All right, well, we will continue to keep everybody posted and see what happens. But thank you so much much for attending today.

Thank you.

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