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California Workplace Compliance
News & Resources

Welcome to California, land of opportunity, lawsuits, wealth, unemployment, highways, droughts, earthquakes, agriculture, Hollywood, Silicon Valley, farmland, beaches, deserts, forests, national parks and crowded urban centers. Or, to put it simply: Welcome to California, land of contradictions.

For years, companies have alternately benefited from and bemoaned California’s business climate. While a broad population of consumers and a constant influx of skilled workers make it easy to build a business, the state’s complex and onerous regulatory laws make it difficult to survive and achieve sustained growth.

Stay on top of safety and compliance the right way with this California-specific information but be sure to seek legal counsel when you’re looking for how these changes will directly impact your business. Wherever available, KPA products are updated with the latest government notices and posters for employers.

California Safety News

If you haven’t done so yet, it’s time to calculate your 2023 CDTFA fees. Two specific fees will need to be paid based on your business practices and employee counts: the Generation and Handling Fee and the Environmental Fee. Most businesses may need to setup an CDTFA account.

Generation and Handling Fee

The Generation and Handling Fee is an annual fee paid by businesses that generates more than five tons of hazardous waste in the applicable reporting period. Please note that if this is your first year paying the fee you may have to manually add this as a business activity in the CDTFA portal. The CDTFA will not proactively add this business activity.

Examples of hazardous wastes typically generated at an automotive dealership that are subject to this annual fee include but aren’t limited to:

  • Used motor oil
  • Waste coolant
  • Waste paper filters
  • Oily water
  • Waste paper filters
  • Non-manifested universal waste
  • Recycled hazardous waste (including recycled oils)

You will need to determine the amount of hazardous waste your dealership produce and calculate the cost of your fees.

Calculating Your Fee

The Generation and Handling fee is charged at a flat rate per ton (or fraction of a ton) on hazardous waste generated during the applicable reporting period. For this year, this is waste produced in the calendar year 2022. Submittals are required for each generator site which is determined by individual EPA ID number. Please note this is referred to as the Dec 2023 filing in the CDTFA portal.

If you do not know the amount of hazardous waste generated, you can contact your hazardous waste hauler to determine the amount of hazardous waste generated. Fees are calculated at $49.25/ton or fraction of a ton. As you enter tonnage data into the CDTFA portal, the system will calculate the fee for you.

The initial payment was due on November 30, 2023. This should have been equal to 50 percent of the total amount due for the hazardous waste generation and handling fee. The final payment for your fees is due February 28, 2024. If you didn’t make your prepayment, you should make a full payment at this time.

Environmental Fee

The Environmental Fee is an annual fee paid by businesses and organizations that use, generate, store, or conduct activities related to hazardous materials. All businesses, unless otherwise exempted, are subject to the hazardous waste environmental fee if they have 100 employees or more that worked greater than 500 hours during the calendar year 2023.

Exemptions are limited to specific businesses that provide residential social and personal care for children, the aged, and persons with limited capacities.

Simply enter the number of employees in the CDTFA portal and the portal will calculate the applicable fees

In February 2023, California’s Office of Administrative Law approved the COVID-19 Prevention – Non-Emergency StandardIt classifies COVID-19 as a permanent workplace hazard for employers to address. It’s now in effect for the next 2 years until February 3, 2025. Recordkeeping obligations are in place through 2026.

The permanent non-emergency standard:

  • Modified definitions for “close contacts,” “infectious period,” and “returned case.”
  • Allows employers to address COVID-19 procedures in their written Injury and Illness Prevention Plan (IIPP) or maintain a separate document.
  • Requires employees to be trained on the new regulation requirements.
  • Removes daily symptoms check. Encourage employees to stay home when they’re sick.
  • Eliminates exclusion pay — employers do not have to maintain an excluded employee’s earnings and benefits.
  • Permits employers to put up a poster for 15 days in a noticeable area of the facility, such as a break room, to notify employees about close contacts.
  • Stipulates reporting major outbreaks (20+ employee cases) to Cal/OSHA. However, employers don’t need to report them to local health departments unless specifically instructed to do so.
  • Requires that employers make COVID-19 testing immediately available to employees during work hours at no cost when there’s a major outbreak.

Resources

Last year, California Senate Bill 158, took effect and removed used oil and other wastes that were previously exempt from hazardous waste fees.

The hazardous wastes typically generated at an automotive dealership that are now subject to this annual fee include:

  • Recycled hazardous waste (including recycled oils)
  • Non-manifested universal waste
  • Waste sent outside California for disposal
  • Used motor oil
  • Waste coolant (CA Code 134)
  • Oily water (CA Code 223)
  • Waste paper filters (CA Code 352 or 223)

Additionally, under California’s Department of Toxic Substances Control (DTSC), if you dispose of used metal oil filters as hazardous waste, those filters must be added to your hazardous waste tonnage calculations. NOTE: If you punch or crush metal oil filters, they can be disposed of as scrap metal and aren’t subject to this hazardous waste fee.

You will need to determine the amount of hazardous waste your dealership produces and calculate the cost of your fees.

Calculating Your Fee

The Generation and Handling (GH) fee for hazardous waste is calculated using a flat rate per ton or fraction of a ton on hazardous waste generators for each generator site that produces 5 or more tons of hazardous waste in California within a calendar year.

Your fee for the previous calendar year must be calculated and submitted to the California Department of Tax and Fee Administration (CDTFA) annually on the last day of February. Your fee may include:

  • Environmental Fees
  • Generation and Handling Fees

Environmental Fees: All businesses, unless otherwise exempted, in certain industry groups identified by the DTSC that have the *qualified number of employees who are each employed for more than 500 hours in California, during the calendar year, are subject to the hazardous waste environmental fee.

*Beginning January 1, 2022, the qualifying number of employees is 100 or more workers have that worked more than 500 hours during the calendar year.

Generation and Handling Fees: For sites that produce 5 or more tons/year, the fee calculation rate is $49.25/ton or fraction of a ton. As you enter tonnage data into the CDTFA portal, the system will calculate the fee for you.

The final payment for your fee is February 28, 2023 (after the reporting period).

If You Don’t Know Your Tonnage

  • Contact your dedicated waste hauler to determine your total tonnage.
  • Register online with the CDTFA and complete the fee process.
  • Keep records of the fee completion
  • Consult with your tax consultant on the calculation of your fee and recordkeeping requirements

California HR News

Who: California employers

When: Effective immediately

After a ruling in a lawsuit brought by the California Chamber of Commerce, enforcement of the California Consumer Privacy Act (CCPA) was set to go into effect on March 29, 2024—delayed from the original effective date of July 1, 2023. The California Privacy Protection Agency and the California Attorney General appealed the decision, and on February 9, 2024, the court ruled that enforcement of the law may begin immediately. The law applies to the privacy of consumer and employee data.

The rules affected by the most recent ruling relate to transparency requirements, honoring requests to exercise privacy rights, requirements for service providers and third parties, the handling of children’s and teens’ data, training, and recordkeeping. The California Chamber of Commerce has filed an appeal to attempt to reverse the decision.

How:

  • Review and update your CCPA notices and privacy policies and distribute them to employees and B2B partners.
  • Update your procedures and forms to comply with the law.
  • Train employees involved with CCPA compliance on the new rules.
  • Verify that your vendors have procedures in place to comply with the law.

Additional Resources:

CCPA Court Ruling

S283856 Appeal

CCPA Laws & Regulations

CCPA Frequently Asked Questions (FAQs)

Who: California employers

When: Effective immediately

California enacted AB 51 to prevent employers from requiring applicants and current employees to sign a mandatory arbitration agreement as a condition of employment. A federal district court judge has permanently enjoined California from enforcing AB 51, including Labor Code Section 432.6 and Government Code Section 12953, because it is preempted by the Federal Arbitration Act (FAA). What this means is that employers may choose to require arbitration agreements as a condition of employment as long as the agreements are covered by the FAA.

Not all arbitration agreements are covered by the FAA. The FAA generally applies to any business involved in interstate commerce but it exempts employment contracts with seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.

How:

  • Review your employment arbitration agreements to ensure they state that the agreements are covered by the FAA.
  • Review all new-hire documents to make sure they do not contain language mandating arbitration.
  • Continue to monitor for challenges to FAA exemptions and new legislative attempts to prohibit arbitration.

Additional Resources:

AB 51

Chamber of Commerce of the USA et al. v. Becerra et al

California Code, Government Code – GOV § 12953

California Code, Labor Code – LAB § 432.6

Who: California janitorial employers

When: Effective immediately

AB 547 passed in 2019, which requires janitorial employers to provide two hours of in-person sexual harassment and sexual violence prevention training once every two years for all employees, including supervisors and nonsupervisors. The requirements of the law were suspended due to the COVID-19 pandemic. Now that the COVID-19 public health emergency has ended, the Division of Labor Standards Enforcement has ordered a resumption of the training.

A covered employer is defined as any person or entity that employs at least one covered worker or otherwise engages by contract, subcontract, or franchise agreement for the provision of janitorial services by one or more covered workers. A covered worker is defined as an individual predominantly working as a janitor, including employees, independent contractors, and franchisees. The U.S. Department of Labor defines janitorial work in the Service Contract Act Directory of Occupations (SCADO). AB 547 defines exemptions to the covered worker definition.

Employers must use the content developed by the Labor Occupational Health Program (LOHP), which is available on the Department of Industrial Relations website.

Employers must work with a qualified organization to provide the required in-person training. Employers that cannot find a qualified trainer to provide the training may use a trainer as prescribed by the Civil Rights Department to fulfill their obligations under Labor Code section 1429.5.

How:

  • Provide the required training to all supervisory and nonsupervisory personnel.

Additional Resources:

AB 547

California Labor Code section 1429.5.

Article 6. Sexual Violence and Harassment Prevention Training for Property Service Workers

SCA DIRECTORY OF OCCUPATIONS Fifth Edition

Qualified Organization Application Process

Qualified Organization Search

Sexual Harassment Prevention Training for Janitorial Services Employers

Sexual Violence and Harassment Prevention Training for Supervisors

Sexual Violence and Harassment Prevention Training for Workers

Who: California employers

When: Effective immediately

The California Civil Rights Department published an updated version of the “California Law Prohibits Workplace Discrimination and Harassment” poster, which employers must post where it’s visible to employees. The poster includes information about protections for taking bereavement leave or leave for reproductive loss (under SB 848), as well as information about prohibitions against discrimination based on an applicant’s use of cannabis outside of the workplace (under SB 700).

If more than 10% of employees speak a language other than English, employers must also display the poster in that language.

How:

  • Post the updated California Law Prohibits Workplace Discrimination and Harassment poster.

Additional Resources:

SB 700

SB 848

California Civil Rights Department Required Posters

California Law Prohibits Workplace Discrimination and Harassment Poster

Who: California employers

When: Effective immediately

As of January 1, 2024, employers must update their Wage Theft Prevention Notice for nonexempt employees to comply with AB 636. The wage theft notice must now include information about federal and state declarations of emergency or disaster and health and safety issues that:

  • Apply to the county(ies) where the employee is to be employed;
  • Are issued within 30 days before the employee’s first day of employment; and
  • May affect the employee’s health and safety during their employment.

Another change employers must include is the amount of paid sick leave available to employees, which has increased from three days or 24 hours to five days or 40 hours (under SB 616). This includes the accrual and request for paid sick leave.

Employers are not to retaliate or terminate employees for exercising their right to use paid sick leave.

The California Labor Commission has a template notice that employers may use in lieu of creating their own. Employers that create their own notice must include all required information.

How:

  • Post an updated Wage Theft Prevention Notice.
  • Consult with legal counsel as necessary to ensure compliance with the law.

Additional Resources:

AB 636

SB 616

Wage Theft Protection Act

Wage Theft Notice

Open State of Emergency Proclamations

Who: California employers

When: Effective immediately

As of January 1, 2024, employers must update their Wage Theft Prevention Notice for nonexempt employees to comply with AB 636. The wage theft notice must now include information about federal and state declarations of emergency or disaster and health and safety issues that:

  • Apply to the county(ies) where the employee is to be employed;
  • Are issued within 30 days before the employee’s first day of employment; and
  • May affect the employee’s health and safety during their employment.

Another change employers must include is the amount of paid sick leave available to employees, which has increased from three days or 24 hours to five days or 40 hours (under SB 616). This includes the accrual and request for paid sick leave.

Employers are not to retaliate or terminate employees for exercising their right to use paid sick leave.

The California Labor Commission has a template notice that employers may use in lieu of creating their own. Employers that create their own notice must include all required information.

How:

  • Post an updated Wage Theft Prevention Notice.
  • Consult with legal counsel as necessary to ensure compliance with the law.

Additional Resources:

AB 636

SB 616

Wage Theft Protection Act

Wage Theft Notice

Open State of Emergency Proclamations

Who: California employers with 5 or more employees

When: Effective January 1, 2024

Governor Gavin Newsom signed SB 848 into law on October 11, 2023, which establishes unpaid leave for employees who experience a reproductive loss event. Such event is defined as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The law applies to California employers with five or more employees. To be eligible, an employee must have worked for an employer for at least 30 days.

Employees can take a leave of absence for up to five days, and they can take the leave non-consecutively but must generally take the leave within three months of the triggering event for the leave. Total leave in a 12-month period may not exceed 20 days. Employees do not have to document the reason for the leave, and employers cannot retaliate against employees who take the leave. Employers must maintain the confidentiality of persons requesting leave.

Leave is unpaid unless the employer has an applicable leave policy in place. In that case, eligible employees may use accrued and available sick leave, vacation time, or other paid time off.

How:

  • Decide whether reproductive loss leave will be paid or unpaid based on your existing leave policies.
  • Update your leave policies and employee handbooks to comply with the law.
  • Train HR personnel, managers, and supervisors on this law.

Additional Resources:

SB 848

Who: California employers with 5 or more employees

When: Effective January 1, 2024

Governor Gavin Newsom signed SB 848 into law on October 11, 2023, which establishes unpaid leave for employees who experience a reproductive loss event. Such event is defined as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The law applies to California employers with five or more employees. To be eligible, an employee must have worked for an employer for at least 30 days.

Employees can take a leave of absence for up to five days, and they can take the leave non-consecutively but must generally take the leave within three months of the triggering event for the leave. Total leave in a 12-month period may not exceed 20 days. Employees do not have to document the reason for the leave, and employers cannot retaliate against employees who take the leave. Employers must maintain the confidentiality of persons requesting leave.

Leave is unpaid unless the employer has an applicable leave policy in place. In that case, eligible employees may use accrued and available sick leave, vacation time, or other paid time off.

How:

  • Decide whether reproductive loss leave will be paid or unpaid based on your existing leave policies.
  • Update your leave policies and employee handbooks to comply with the law.
  • Train HR personnel, managers, and supervisors on this law.

Additional Resources:

SB 848

Who: California employers

When: Effective January 1, 2024

Beginning January 1, 2024, the California minimum wage will be $16.00 an hour for all employers, an increase from $15.50 in 2023. Some cities and counties have different minimum wage requirements that could be higher than $16.00, and employers need to ensure they are paying their employees in accordance with those regulations.

The increase in minimum wage changes the overtime exemption limits for professional, executive, and administrative employees as well. To be considered exempt, an employee must earn a minimum annual salary of $66,560 and meet the duties requirements. The overtime exemption rate for software employees will increase to an annual salary of $115,763.35.

Employers must post the Minimum Wage Order and the Wage Order applicable to their workplace where they are visible to all employees. They must update their Wage Theft Protection Act Notice with the new minimum wage and overtime exemption rates.

Employees who are not being paid minimum wage may file a wage claim by contacting the California Labor Commissioner’s Office Call Center at 833-526-4636.

How:

  • Update your notices for minimum wage and wage theft prevention with the new minimum wage and overtime exemption rates and issue them within seven calendar days of the effective date of the new rates.
  • Review your exempt employee classifications.
  • Audit your payroll processing procedures to ensure compliance with the law.

Additional Resources:

California Labor Code Section 515.5.

Wage Theft Protection Act

Workplace Postings

Industrial Welfare Commission Wage Orders

Overtime Exemption for Computer Software Employees

Who: California employers

When: Effective January 1, 2024

Governor Gavin Newsom signed SB 699 into law on September 1, 2023, which adds Section 16600.5 to the California Business and Professions Code. The law goes into effect January 1, 2024, and expands the already significant restrictions on noncompete agreements between employers and employees. Business and Professions Code section 16600 currently provides, with limited exceptions for the sale or dissolution of corporations, partnerships, and LLCs, that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” SB 699 makes it unlawful for employers to enforce agreements that are void and unenforceable under section 16600 irrespective of when or where the agreement was entered into.

In other words, the law allows California courts to invalidate restrictive covenants in noncompete agreements even if they were signed in another state, if the employee is located in another state, or if the employee resided in another state at the time they signed the agreement.  SB 699 also prohibits employers from entering into contracts with employees that have a provision that is void per section 16600.

An existing, former, or prospective employee may bring a civil action to obtain injunctive relief or to recover actual damages, or both. If they prevail, they are entitled to recover reasonable attorney’s fees and costs.

Governor Newsom also signed AB 1076 into law on October 13, 2023, which states that the courts should broadly interpret the new law so that any contract that restrains a person from engaging in a lawful profession, trade, or business is void. In addition, the law requires employers to notify current and former employees in writing by February 14, 2024, if a noncompete agreement they signed is void under the new law. They must send the notice to the employee’s last known address and email address. Employers who do not comply are subject to civil penalties.

Companies outside of California that have employees in California or employees who subsequently move to California are subject to these laws and they need to determine how they’re going to handle noncompete agreements going forward.

How:

  • Review and revise your restrictive covenants and noncompete agreements to comply with the law.
  • Prepare to send notices to employees whose noncompete agreements are void under the law.
  • Consult with legal counsel as necessary to ensure compliance with the law.

Additional Resources:

SB 699

AB 1076

Section 16600

Who: California employers

When: Effective January 1, 2024

On October 7, 2023, Governor Gavin Newsom signed SB 700 into law, which bans employer discrimination against applicants and employees for prior use of cannabis and provides additional protections for those who use cannabis while off duty. SB 700 impacts the hiring process and amends the Fair Employment and Housing Act (FEHA), effective January 1, 2024. Governor Newsom signed AB 2188 on September 18, 2022, which also goes into effect on January 1, 2024. The law prohibits employers from taking adverse employment action against workers who use cannabis while off duty.

Employees may not be impaired while on the job. Employers can still maintain a drug-free workplace; test for controlled substances and active impairment/THC; and conduct criminal background checks, as long as they meet the requirements of the law. Employers may no longer test for non-psychoactive cannabis metabolites. Employees may not bring cannabis to the workplace.

Federal contractors, employers in the construction industry, and employers who hire or employ workers who must have a security clearance are exempt from SB 700 and AB 2188.

How:

  • Review and revise your drug use, drug testing, and anti-discrimination policies as needed to comply with the law.
  • Review and revise your employment applications and other new-hire documentation as needed to comply with the law.

Additional Resources:

AB 2188

SB 700

Who: California employers

When: Effective January 1, 2024

On October 4, 2023, Governor Gavin Newsom signed SB 616 into law, which amends the Healthy Workplaces, Healthy Families Act of 2014. It increases the amount of paid sick leave from 24 hours or three days (whichever was greater) per year to 40 hours or five days per year.

Employees accrue one hour of paid sick leave for every 30 hours worked. Employers can choose how to accrue the time but must make sure to accrue 1) 24 hours of paid sick leave by the 120th calendar day of employment and 2) at least 40 hours of paid sick leave by the 200th calendar day of employment.

Employers can frontload paid sick leave, in which case they are not obligated to roll over unused time at the end of the year. If they do not frontload the leave, they must roll it over. The cap is now 80 hours or 10 days instead of 48 hours or six days.

The amendment impacts all California employers regardless of size and applies to all full-time, part-time, and temporary workers who qualify for paid sick leave. Employees must work in California for at least 30 days for the same employer to be eligible.

Employees that are party to a collective bargaining agreement are exempt from the law. Employers must take into consideration local paid sick leave laws that may provide for more sick leave and protections than this new law does.

How:

  • Monitor for the release of an updated Paid Sick Leave Notice.
  • Update your sick leave/PTO policies, training materials, and employee handbooks to comply with the law.
  • Ensure your payroll system and pay stubs comply with the law.
  • Train supervisors, managers, and HR personnel on the new law.

Additional Resources:

SB 616

Required Posters and Notices

Who: Covered Berkeley, California employers with 10 or more employees

When: Effective January 12, 2024

Effective January 12, 2024, Berkeley, California employers in certain industries with 10 or more employees working in the City of Berkeley must adhere to the new Fair Workweek Ordinance. Specifically, it applies to these organizations:

  • Workers are primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and the business employs 56 or more employees globally;
  • Workers are primarily engaged in the restaurant industry, and the business employs 100 or more employees globally;
  • Workers that are franchisees primarily engaged in the retail or restaurant industries and associated with a network of franchises with franchisees employing 100 or more employees globally in total; and
  • Section 501 not-for-profit corporations in the industries specified under subsection (a)(1), (2), and (3) and that employ 100 or more employees globally.

Covered employees are those who qualify for minimum wage and work at least two hours in a work week in Berkeley.

Employers must provide a written, good-faith estimate of a new hire’s schedule that indicates the minimum hours they will be expected to work. The employee may request a modification, which the employer can accept or reject. The employer must notify the employee in writing of their decision prior to or on the first day of employment.

At least 14 days in advance, an employer must notify current employees of their schedules. They can post it in a conspicuous place that is visible and available to all employees or send it to employees electronically.

Employers must offer additional hours first to qualified current employees before hiring a new employee to cover those hours. Employees have 24 hours to respond in writing if they choose to accept the extra work.

Covered employers have to notify employees of schedule changes within 24 hours. An employee can turn down unscheduled hours if the employer gives the employee notice less than 14 days before the first day of the schedule.

An employer must pay the employee predictability pay when they change the employee’s schedule under certain circumstances. If the employer adds or subtracts hours, moves a scheduled shift to another date or time, cancels a shift, or adds a previously unscheduled shift to the schedule with less than 14 days’ notice and more than 24 hours’ notice, the employer must pay one hour of predictability pay at the employee’s regular rate of pay.

When the employer takes any of those actions with less than 24 hours’ notice, the employer must pay four hours of predictability pay, or the number of canceled or reduced hours in the employee’s scheduled shift, whichever is less, or when hours are canceled or reduced. For all other changes with less than 24 hours’ notice, they must pay one hour of predictability pay. Just because an employee agrees to work additional hours or shifts, that action does not exempt the employer from predictability pay.

Predictability pay is not required under certain circumstances, such as when two employees mutually agree to swap shifts or cover each other’s shifts.

An employee is allowed to decline work hours that occur less than 11 hours after the end of the previous day’s shift or during the 11 hours following the end of a shift that spanned two days. If the employee accepts such shifts, the employer must pay one and one-half times the employee’s regular rate of pay for any hours worked less than 11 hours following the end of a previous shift.

The City Manager’s Department will enforce the law, which includes prohibitions against retaliation. The fine for retaliation is $1,000, and $500 for other offenses.

How:

  • Provide written notice of employee rights under the law to each employee and to new employees upon hire.
  • Post the notice of the Fair Workweek Ordinance in the workplace.
  • Review your scheduling practices and procedures and update them as needed to comply with the law.
  • Train managers on the law.
  • Monitor for the release of additional regulations and guidance.

Additional Resources:

Fair Workweek Ordinance

Workforce Standards and Enforcement

Fair Workweek Training Module for Employers

Who: California employers

When: Effective July 1, 2024

On September 30, 2023, Governor Newsom signed legislation that will require workplaces to adopt and implement a workplace violence prevention plan, document any threats or workplace violent incidents, and train employees. Cal/OSHA has been designated as the enforcement agency for this new law.

The prevention plans must cover:

  • The name and title of responsibile individual for program implementation.
  • Procedures for receiving and responding to reports of workplace violence
  • Employers are prohibited from retaliating against an employee who reports an incident
  • How employees can report a violent incident, threat, or other concern to their employer or law enforcement without fear of retaliation
  • Procedures for alerting employees of the presence, location, and nature of a workplace violence emergency
  • Evacuation or sheltering-in-place plans
  • How reports will be investigated and how employees will be informed of the results
  • Procedures for enlisting employees in developing and implementing the violence prevention plan
  • The review of the plan for effectiveness and revising it as needed

How:

  • KPA will continue to monitor this topic for additional information from Cal/OSHA as the effective date nears.

Additional Resources:

SB533

Who: California employers

When: Effective October 1, 2023

The California Civil Rights Department finalized and adopted regulations for the Fair Employment and Housing Act (FEHA) on July 24, 2023, effective on October 1, 2023. The regulations relate to the law that governs whether employers may or may not inquire about and use an applicant’s criminal history in employment decisions. Changes and clarifications include:

  • Employers may not add statements to job advertisements, postings, applications, or other related material that say they won’t consider applicants with a criminal history.
  • Existing law states that employers may not request or use criminal history information until after they have made a conditional offer of employment. Applicant is now defined as “an existing employee who is subject to a review and consideration of criminal history because of a change in ownership, management, policy or practice.” The prohibition now also applies to current employees regarding promotion, training, discipline, lay-off, or termination decisions.
  • If an applicant discloses their criminal history voluntarily before receiving a conditional offer of employment, an employer may not use the information until they make the conditional offer (unless the employer is required by law to conduct the background check per the new regulations).
  • The regulations include additional examples of relevant evidence when an employer performs an individualized assessment.
  • The definition of employer is now “any entity that evaluates an applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly.”
  • Employers must now conduct an “initial” individualized assessment before sending the notice of preliminary decision.
  • The regulations give examples of the types of evidence of rehabilitation or mitigating evidence an applicant or employee may provide. Employers cannot require specific documentary evidence or refuse to consider information the applicant or employee presents.
  • The regulations give examples of evidence to consider when conducting an assessment.
  • The regulations add factors employers may want to consider during reassessment.
  • The regulations clarify how “received” is defined as it relates to the preliminary decision notice being sent to the applicant/employee.

How:

  • Update your screening policies as they apply to background checks, applications, offer letters, adverse actions notices, guidance for recruiters, and other similar documents to comply with the regulations.
  • Consult with legal counsel to ensure compliance.
  • Train managers and HR personnel on the revised law.

Additional Resources:

Approved Regulations

Civil Rights Council Final Text of Modifications to Employment Regulations Regarding Criminal History

Who: California employers

When: Effective immediately

On July 24, 2023, the California Supreme Court ruled in Woodworth v. Loma Linda Univ. Med. Ctr. The case was a PAGA claim a registered nurse who worked at the Loma Linda Medical Center brought against her employer. She claimed that the Center had violated wage and hour rules by using timecard rounding practices and thereby avoided paying her overtime compensation that was due. The employer rounded time punches to the nearest tenth of an hour, and they had deemed it neutral because neither the center nor the employees had a systematic advantage.

The Court ruled against Loma Linda, noting that current technology makes it easy to accurately track all employee hours worked and therefore rounding is not permitted. Employers need to consider discontinuing timecard rounding practices and paying compensation based on the actual punch-in and punch-out times to ensure they are paying employees for all hours worked.

How:

  • Conduct a wage and hour audit that includes overtime, timekeeping, pay structure, and meal and rest periods. Update your policies as needed.

Additional Resources:

Woodworth v. Loma Linda Univ. Med. Ctr.

Who: California employers

When: Effective immediately

On July 17, 2023, the California Supreme Court ruled in Adolph v. Uber Technologies, that 1) the Federal Arbitration Act (FAA) requires PAGA plaintiffs to arbitrate their individual claims and that 2) these individual plaintiffs have standing to pursue representative PAGA claims in court.

Specifically, the Court stated, “Where a plaintiff has brought a PAGA action comprising individual and non-individual claims, an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate claims on behalf of other employees under PAGA.” However, the ruling requires that such plaintiffs pursue non-individual claims on behalf of others only after their individual claims are arbitrated and they are found to be an “aggrieved employee.” If the arbitrator does not find that the plaintiff has been aggrieved, the plaintiff may not move forward with non-individual claims.

California employers can no longer rely on the U.S. Supreme Court Viking River Cruises v. Moriana ruling, which held that an employee’s individual PAGA actions could be separated from their non-individual PAGA actions and compelled to arbitration, leaving the non-individual claims to be dismissed for lack of standing. Employers may still enforce and compel arbitration of individual PAGA claims under arbitration agreements governed by the FAA.

How:

  • Review your arbitration agreements with legal counsel to ensure compliance.
  • Audit the wage and hour practices that include overtime, timekeeping, pay structure, as well as meal and rest policies.
  • Train employees and managers on the wage and hour policies and practices.

Additional Resources:

Adolph v. Uber Technologies, Inc.

Who: California employers

When: Effective immediately

On July 1, 2004, the Industrial Wage Commission (IWC)—which regulates wages, hours, and working conditions through wage orders in California—was defunded. Except for wage orders regarding minimum wage, other wage orders have not been updated since 2001.

On July 10, 2023, California Governor Gavin Newsom signed Assembly Bill 102, which is effective immediately and amends the Budget Act of 2023. Assembly Bill 102 allots $3 million to re-fund the IWC. The agency will be restaffed, make final recommendations for updating the wage orders by January 1, 2024, and issue new wage orders by October 31, 2024.

How:

  • Familiarize yourself with IWC procedures so that you can have a voice in IWC and wage board hearings.

Additional Resources:

Industrial Welfare Commission Wage Orders

Industrial Welfare Commission (IWC)

Who: California employers

When: Effective immediately

On July 14, 2023, California Attorney General Rob Bonta announced that his office is conducting an investigative sweep of large employers’ employment data to ensure compliance with the California Consumer Privacy Act (CCPA). Investigators will determine if companies are compliant with data privacy and consumer protection requirements as they relate to employees and job applicants.

As of January 1, 2023, the CCPA gives all employees the same rights that other consumers under the CCPA have related to data collected from or about them. The scope of employees includes:

  • Current and former employees;
  • Family members, dependents, beneficiaries, and emergency contacts of current and former employees;
  • Job applicants; and
  • Independent contractors.

How:

  • Review your privacy notices and policies and ensure you have updated and distributed them as required.
  • Implement a system for receiving and responding to CCPA requests from job applicants and employees.
  • Ensure your vendors who store covered data are in compliance with the CCPA.

Additional Resources:

CCPA Frequently Asked Questions (FAQs)

Attorney General Bonta Seeks Information from California Employers on Compliance with California Consumer Privacy Act

Who: California employers

When: Effective date delayed until March 29, 2024

The California Privacy Rights Act (CPRA) was set to go into effect July 1, 2023, but a California court ruling on June 30, 2023, has resulted in a postponement of the implementation of the regulations until March 29, 2024. The California Chamber of Commerce brought the suit in light of the fact that businesses had only three months to come into compliance with the regulations.

Th ruling appears to only apply to the California Consumer Privacy Act (CPPA) regulations. Therefore, employers should still comply with the CPRA provisions that were on the ballot initiative (i.e., the statutory text itself). Employers should take this time to come into compliance, because the process can be a lengthy one.

How:

  • If you haven’t already, update your CCPA notices and privacy policies.
  • Ensure you are compliant with the requirements that are enforceable right now.
  • Finalize your plan to come into compliance with the regulations that go into effect on March 29, 2024.
  • Train employees involved with CCPA compliance on the new rules.

Additional Resources:

CCPA Laws & Regulations

CCPA Frequently Asked Questions (FAQs)

Who: California employers

When: Effective immediately

On May 22, 2023, the California Supreme Court ruled in People ex rel. Garcia-Brower V. Kolla’s, Inc, which expands whistleblower protections by reinterpreting the term “disclosure” under California’s Labor Code Section 1102.5(b). Previously, whistleblowers were not protected from retaliation if they brought a complaint against an employer for an alleged violation of the law that the employer or a government agency already knew about it.

In the Kolla’s ruling, the Court stated that disclosure “includes protection for disclosures made to ‘another employee who has the authority to investigate… or correct the violation,’ without regard to whether the recipient already knows of the violation.” In this case, the employer already knew it was in violation of wage laws by withholding payment to the employee. Even so, the Court said that the employer’s retaliatory actions—including termination, threatening to report her to immigration authorities, and telling her not to return to work—were unlawful under Section 1102.5(b).

California’s whistleblower law promotes compliance with employment-related laws and regulations and protects employees that disclose violations. Employers can’t retaliate against employees who report violations.

How:

  • Be mindful of reports of misconduct, properly investigate them, and ensure compliance with the law.
  • Revise your policies and procedures as needed to comply with the ruling.
  • Provide code of conduct training.
  • Post the California Whistleblower Protections Notice.

Additional Resources:

California Section 1102.5(b)

California Whistleblower Protections Notice

Who: California private employers with 5 or more employees

When: Effective July 1, 2023

California SB 731 goes into effect July 1, 2023, which expands the “Clean Slate” law related to sealing criminal records. Records of felonies for non-violent crimes committed after January 1, 2005, will be automatically sealed as long as certain conditions are met. California private employers with five or more employees may not lawfully rely on records of such crimes to make hiring decisions after conducting employment background checks on applicants. The law is intended to help formerly incarcerated Californians rehabilitate and obtain a job more easily.

For the record of the felony to be sealed, the convicted individual must have completed their required incarceration, probation, mandatory supervision, parole, and any other terms of their conviction, and have gone at least four years with no new felony offenses. The law does not apply to registered sex offenders or those who have committed more serious crimes, such as murder, manslaughter, rape, kidnapping, attempted murder, assault with a deadly weapon, robbery, or similar crimes.

How:

  • Review and update your policies to comply with the law.

Additional Resources:

SB 731

Who: California employers

When: Effective immediately and will be enforced on July 1, 2023

The California Privacy Protection Agency (CPPA) Office of Administrative Law approved new California Privacy Rights Act (CPRA) regulations on March 29, 2023, which were effective immediately and will be officially enforced starting July 1, 2023. The new regulations are intended to help clarify how the CPPA will enforce the CPRA, which governs the collection and processing of California residents’ personal data. Non-compliance with CPRA could be as high as $2,500 per violation, with each instance potentially creating separate violations.

The regulations include:

  • Prohibitions against using “dark patterns” to manipulate individuals into sharing personal data;
  • Treating global privacy controls as valid opt-out requests;
  • Guidance on how to offer the right to limit the processing of sensitive data, plus six exemptions; and
  • How the CPPA shall conduct investigations and hearings and take action against violators.

How:

  • Review and update your privacy notice to applicants and employees.
  • Align your website with the regulations.
  • Create a data collection policy that is compliant with the CPRA.
  • Provide training to all employees.

Additional Resources:

California Consumer Privacy Act Regulations Final Regulations

California Notice of Approval

California Consumer Privacy Act Regulations

California CCPA Frequently Asked Questions (FAQs)

Who: Los Angeles, California employers

When: Effective July 1, 2023

Effective July 1, 2023, the City of Los Angeles California minimum wage will increase to $16.78 per hour. The City of Los Angeles Office of Wage Standards announced the $0.74 per hour increase on February 1, 2023, and stated they had calculated the increase based on the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for the Los Angeles metropolitan area.

The minimum wage applies to employees who perform at least two hours of work in any week within the geographic boundaries of Los Angeles and are entitled to payment of minimum wage under California law.

Employers must post the required notice in English and any language spoken by at least 5% of the employees at the workplace or job site.

How:

  • Post the new minimum wage poster.

Additional Resources:

2023 Minimum Wage Ordinance Wage Rate Increase Notice

Los Angeles City Office of Wage Standards

Who: San Francisco, California employers

When: Effective Immediately

San Francisco employers covered by the Health Care Security Ordinance and/or Fair Chance Ordinance must submit their 2022 annual Employer Annual Reporting Form to the Office of Labor Standards Enforcement (OLSE) by May 1, 2023. The report demonstrates compliance with San Francisco’s Health Care Security Ordinance and/or Fair Chance Ordinance.

The Fair Chance Ordinance prohibits employers from asking job applicants about arrest or conviction records until after they issue a conditional offer of employment. The Health Care Security Ordinance requires employers to make health care contributions for covered employees.

An employer is covered by the Health Care Security Ordinance in a calendar quarter if it:

  • Employs one or more workers within the geographic boundaries of the City and County of San Francisco;
  • Is required to obtain a valid San Francisco business registration certificate; and
  • Is a for-profit business with 20 or more persons performing work or a nonprofit organization with 50 or more persons performing work.

An employer is covered by the Fair Chance Ordinance if it:

  • Has five or more employees worldwide or
  • Contracts with the City and County of San Francisco (no matter the number of employees).

Noncompliant employers may be fined up to $500 per quarter.

How:

  • Submit your report to OLSE by May 1, 2023.
  • Post the City & County of San Francisco Health Care Ordinance Poster and San Francisco Fair Chance Ordinance Poster.

Additional Resources:

City & County of San Francisco Health Care Security Ordinance Poster

City & County of San Francisco Fair Chance Ordinance Poster

Submit an Employer Annual Reporting Form to OLSE

Understanding the Health Care Security Ordinance

Understanding the Fair Chance Ordinance

Who: California employers

When: Effective immediately

On March 23, 2023, Governor Gavin Newsom signed SB 41, which states that California’s new meal and rest period requirements don’t apply to airline cabin crew employees when:

  1. The employee is covered by a valid collective bargaining agreement under the Railway Labor Act and
  2. The agreement contains any provision addressing their meal and rest periods.

The exemption also applies to the first 12 months an employee is part of a craft or class of employees represented by a labor organization pursuant to the Railway Labor Act but that employee is not yet covered by a valid collective bargaining agreement.

This law resolves long-standing contradictions between federal and state laws. It fixes the contradiction between the Federal Aviation Administration law, which says flight attendants must remain on duty at all times during a flight, and the California state law, which previously stated that all employees must be off duty during meal and rest breaks and allowed to leave the premises.

How:

  • Update your policies and practices to comply with the law.

Additional Resources:

SB 41

Who: California private employers with 100 or more employees

When: Submit pay data by May 10, 2023

On February 2, 2023, the California Civil Rights Department (CRD) announced that the California pay data reporting portal is open. Per Government Code Section 12999, California private employers with 100 or more employees and at least one employee working in California must file the California Pay Report with the CRD by May 10, 2023.

The California legislature implemented the reporting requirements to encourage large employers to self-audit pay disparities and comply with equal pay and anti-discrimination laws.

The filing requirement applies whether or not the employer files an EEO-1 report with the federal government. In addition, employers may no longer file an EEO-1 report with the CRD to satisfy the reporting requirement.

The pay data must include pay, pay band, and hours worked for each employee who works in California. Additional data required this year includes:

  • Mean and median hourly rate of employees by establishment,
  • Job category,
  • Race/Ethnicity, and
  • Sex.

Senate Bill 1162 became effective on January 1, 2023. In response, the CRD enhanced the reporting portal, user guide, and FAQs. Another change this year is that employers must file a separate Labor Contractor Employee Report for contractors hired in the previous year.

How:

Additional Resources:

California Pay Data Reporting Frequently Asked Questions

California Civil Rights Department Pay Data Reporting Website

California Pay Data Reporting Portal

Who: California employers

When: Effective immediately

On February 15, 2023, the 9th U.S. Circuit Court of Appeals blocked California AB 51, which bans the use of mandatory arbitration agreements with employees and applicants. In its opinion on the U.S. Chamber of Commerce v. Bonta case, the court said AB 51 is preempted by the Federal Arbitration Act.

For now, California employers can require new hires to sign arbitration agreements as a condition of employment, including clauses related to claims for unpaid wages and discrimination, and causes of action under the Labor Code and the Fair Employment and Housing Act. However, the State of California can still appeal this decision.

How:

  • Consult with legal counsel to review your arbitration agreements and ensure compliance with the law.
  • Continue to monitor for possible legal appeals.

Additional Resources:

Federal Arbitration Act

U.S. Chamber of Commerce v. Bonta

Assembly Bill No. 51

Who: San Francisco, California private employers with 100 or more employees

When: Effective immediately

On February 16, 2023, the San Francisco Office of Labor Standards Enforcement released FAQs related to paid military leave. The FAQs clarify provisions of the Military Leave Pay Protection Act (MLPPA), which requires private employers in San Francisco, California that employ 100 or more employees worldwide to pay supplemental compensation for employees on military leave for up to 30 days each calendar year.

The FAQs address several issues, including how to calculate business size, what is defined as “San Francisco,” how to provide notice of rights and responsibilities to employees, and how to calculate and pay supplemental compensation.

The FAQs state that employers should provide employees notice of their right to supplemental compensation within “a reasonable time” after the employee gives notice that they have received written military orders and will require time off work. Employers that have employee handbooks must include a description of employees’ rights to supplemental compensation in the next edition of their handbook. In cases of foreseeable absences, employers may require employees to comply with “reasonable” notice procedures.

When calculating supplemental compensation, the employer must subtract gross military pay from gross pay the employee would have received for the time they would have worked in San Francisco, including overtime but excluding tips. Employers must also provide the same benefits during the leave period as they otherwise would have.

To determine hours that “would have been worked” for employees that don’t have a regular schedule, the employer must use a lookback period of the three monthly pay periods, six bi-weekly or semi-monthly pay periods, or 12 weekly pay periods immediately preceding the military leave. The FAQs specify that employers should make a good faith effort to pay the supplemental compensation no later than the payday for the payroll period when the military leave began.

Employers must keep records related to an employee’s schedule, hours worked, and military leave taken for four years.

How:

  • Review and update your policies to comply with the law and update your handbooks as required.
  • Provide a notice of employee rights when an employee requests military leave.
  • Mail the notice of employee rights to employees once a year.
  • Monitor for future FAQs, regulations, a notice poster, and a model compensation request form on the San Francisco, California website.

Additional Resources:

Military Leave Protection Act Ordinance No. 008-23

San Francisco Private Sector Military Leave Pay Protection Act Implementation Guidance FAQs

San Francisco Understanding the Military Leave Pay Protection Act

San Francisco Office of Labor Standards Enforcement Website

Who: San Mateo County, California employers

When: Effective April 1, 2023

Effective April 1, 2023, the San Mateo County minimum wage will increase to $16.50 per hour. If the employee is subject to state and federal minimum wage laws, they are entitled to the higher rate.

The San Mateo County minimum wage is distinct from that of the City of San Mateo. Starting January 1, 2024, the county will increase minimum wage by the lesser of 5% or the percentage equal to the prior year’s increase in the Consumer Price Index.

Employers must post the San Mateo County labor law poster and provide a notice of minimum wage rate to new employees.

How:

  • Post the labor law poster.
  • Provide notice of the minimum wage rate to new employees.

Additional Resources:

Los Angeles Fair Workweek Ordinance

County of San Mateo County

Who: Los Angeles, California employers with 300 or more employees

When: Effective April 1, 2023

The Los Angeles Fair Work Week ordinance will go into effect on April 1, 2023, which regulates retail businesses with employees who work in the city that have 300 or more employees globally. Covered employees are those that work at least two hours during a work week within the city of Los Angeles and who qualify for minimum wage.

Employers must provide employees written notice of their work schedules at least 14 calendar days prior to the first day of the schedule. Employers may post the work schedules or provide them to employees electronically. Employees have a right to decline any hours not included in the original work schedule. If an employee consents to work the changed hours, consent must be in writing.

An employer must pay the employee premium pay (i.e., “predictability pay”) if they change the employee’s schedule. The compensation is one additional hour of pay at the regular rate for a) a schedule change that does not result in a loss of time to the employee or b) a schedule change that adds more than 15 minutes of additional work time to the employee. If the change in the schedule reduces the employee’s work time by at least 15 minutes, the employer must pay the employee one-half of the time the employee does not work as set forth in the initial schedule. Predictability pay is not required under certain circumstances, such as when the employee makes the schedule change request or when the extra hours worked will result in overtime pay.

Other provisions of the ordinance include:

  • Unless the employee consents otherwise in writing, the employer must give them at least 10 hours of rest between shifts. In cases where the employee didn’t get 10 hours of rest, the employer has to pay time and a half for the shift.
  • Employers must provide a good faith estimate of a work schedule and notice of rights to new employees upon hire or within 10 days of an employee’s request.
  • Employees have the right to request certain hours, times, or locations of work. Denials of such a request must include an explanation and be in writing.
  • Employers must offer additional work hours to current employees before hiring new employees, unless the additional work results in overtime pay.
  • Employers may not require employees to find coverage for their shift if they are unable to work for reasons protected by law.
  • Employers must maintain all related records for three years.
  • Employers must post a notice in the workplace—published each year by the DAA—that informs employees of their rights. The notice must be posted in the required specified languages.

The City of Los Angeles may fine employers up to $500 per violation per employee. Employees may also file a private right of action for violations after notifying the employer and allowing 15 days to cure violations. The ordinance contains an anti-retaliation provision for exercising rights under the law.

How:

  • Once it has been released, post the required notice and provide it to employees.
  • Review and update your scheduling policies and procedures to comply with the law.
  • Notify your payroll department or service of the rules for predictability pay.
  • Train managers, supervisors, and HR personnel on the law.
  • Monitor for additional related regulations and guidance.

Additional Resources:

Los Angeles Fair Workweek Ordinance

Who: San Francisco, California private employers with 100 or more employees

When: Effective February 19, 2023

San Francisco Mayor London Breed signed the Military Leave Pay Protection Act on January 20, 2023, which provides differential paid leave for military reservists that must report to active duty on or after February 19, 2023. The Military Protection Act applies to all private employers with 100 or more employees, regardless of where they work.

Military duty is defined as “active military service in response to the September 11, 2001, terrorist attacks, international terrorism, the conflict in Iraq, or related extraordinary circumstances, or military service to provide medical or logistical support to federal, state, or local government responses to the COVID-19 pandemic, natural disasters, or engagement in military duty ordered for the purposes of military training, drills, encampment, naval cruises, special exercises, Emergency State Active Duty, or like activity.” The ordinance applies to part-time and full-time employees but excludes those covered by a collective bargaining agreement that expressly waives the requirements of the ordinance.

Employers must pay those called up to active duty the difference between military pay and the amount of pay they would have received from their employers working their “regular work schedule” for up to 30 days.

An employee has the right to bring a civil action for an alleged violation but first must provide a written notice to the City of San Francisco. If the City does not file a lawsuit or give the complainant notice within 90 days, the employee can move forward with a suit. Legal relief could include payment of unlawfully withheld supplemental compensation, interest, liquidated damages in the amount of $50 per day per person, the amount of unlawfully withheld supplemental compensation multiplied by three or $250, whichever is greater, and reasonable attorneys’ fees and costs.

How:

  • Continue to monitor San Francisco California website for additional guidelines.
  • Update your military leave policies and procedures to comply with the law.

Additional Resources:

Military Leave Protection Act

San Francisco Office of Labor Standards Enforcement Website

Who: California employers with 15 or more employees and at least one employee in California

When: Effective immediately

The California Labor Commissioner released updated FAQS for the California Equal Pay Act that clarify the pay transparency requirements that took effect on January 1, 2023. Employers that must include the pay scale in their job postings include those with 15 or more employees and at least one employee in California. The law applies to jobs that can be filled remotely or in person. When counting employees, employers must include all those who performed compensable work except for bona fide independent contractors.

Pay scale is defined as the salary or hourly wage that the employer reasonably expects to pay for the position, including piece rate or commissions. Benefits do not have to be included in the job posting. The pay scale must be listed in the posting itself, not via a link or QR code. If an employer uses a third party to post jobs, they must provide the pay scale to them so they can include it in the job posting.

Employers must retain records pertaining to pay disclosure for the length of employment plus three years. Violations of the law are subject to civil penalties of $100 to $10,000 per violation.

How:

  • Update your policies to comply with the law.
  • Review all current job postings to ensure compliance with the new law.
  • Provide training to managers and HR personnel on the provisions of the law.

Additional Resources:

Senate Bill No. 1162

California Equal Pay Act: Frequently Asked Questions

California Pay Data Reporting

California Pay Data Reporting: Frequently Asked Questions

Who: California employers

When: Effective January 1, 2023

On September 5, 2022, Governor Gavin Newsom signed California Assembly Bill 257, known as the Fast Food Accountability and Standards (FAST) Recovery Act, which is effective January 1, 2023. It is the first law in the United States to enact workplace rules and standards specific to fast-food employees. The law applies to non-unionized fast-food chains with 100 or more locations.

A 10-member Fast-Food Sector Council will determine standards for working conditions, training, minimum wage, and maximum working hours. The members will be worker advocates and state representatives. The Council will hold public hearings every six months and convene every three years to establish and review standards. Their new standards must go through the Office of Administrative Law rulemaking process and do not have to be approved by the legislature. The standards will go into effect the following October 15th unless legislators enact laws to prevent them from taking effect.

AB 257 allows for the formation of city and county councils, which can make their own recommendations to the statewide Council. In addition, local jurisdictions can pass their own more protective local standards.

The Labor Commissioner will enforce the law and has the power to file a civil action against alleged violators. The law also allows covered employees to bring private causes of action against employers for discharge, discrimination, or retaliation for exercising rights established by the FAST Recovery Act.

The law has complex potential implications. The Council is authorized to mandate a substantially higher minimum wage for fast-food workers than the state’s existing minimum wage, which could have a domino effect of higher consumer prices and jobs lost to technological innovations.

How:

  • Update your policies, employee handbooks, and other documentation to comply with the law.
  • Train employees on the requirements of the new law.

Additional Resources:

AB 257

Who: California employers

When: Effective January 1, 2023

On September 29, 2022, Governor Gavin Newsom signed California Assembly Bill 1041, which amends the California Family Rights Act (CFRA). The law applies to California private and public employers with five or more employees and is effective January 1, 2023. Under existing law, employees may take CFRA job-protected leave for a child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner. The law adds the term “designated person” to this list and defines such a person as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.”

The law allows up to 12 weeks of unpaid sick leave to care for a designated person with a serious illness. Employers may limit an employee to only one “designated person” in a 12-month period.

AB 1041 also amends the California Paid Sick Leave Law to include a “designated person.” The California Paid Sick Leave Law (Healthy Workplaces Healthy Families Act (HWHFA) applies to California employers of all sizes. An employee that works more than 30 days can qualify to take time off. Under this law, designated person is defined as “a person identified by the employee at the time the employee requests paid sick days.” The designated person does not have to be related by blood or have a relationship equivalent to a family relationship. As under CFRA, an employer may limit an employee to taking leave for only one designated person in a 12-month period.

The law creates further complexities when it comes to coordination with state and local laws, California’s Paid Family Leave law, and federal unpaid family medical leave law. The California Civil Rights Department and the California Department of Industrial Relations Commissioners Office may release additional guidance.

How:

  • Update your policies, protocols, and forms related to the California Family Rights Act and Paid Sick Leave (Healthy Workplaces Healthy Families Act).
  • Monitor the California Civil Rights Department and the California Department of Industrial Relations Commissioners Office websites for additional guidance or proposed rules.
  • Monitor the California Civil Rights Department for updated posters, guides, and fact sheets.

Additional Resources:

AB 1041

California Civil Rights Department

California Department of Industrial Relations Labor Commissioner’s Office

California Civil Rights Department Posters Guides and Fact Sheets

Who: California private and public employers with five or more employees

When: Effective January 1, 2023

On September 29, 2022, Governor Gavin Newsom signed California Assembly Bill 1949, which amends the California Family Rights Act (CFRA). Effective January 1, 2023, private and public employers with five or more employees must provide up to five days of bereavement leave under the California Family Rights Act (CFRA) when an employee’s family member dies and the employee requests the leave.

Under the California Family Rights Act, the definition of a family member for bereavement leave includes spouses, children, parents, siblings, grandparents, grandchildren, domestic partners, and parents-in-law. The employee must complete the leave within three months of the person’s passing. Employees may take the bereavement leave on nonconsecutive days.

To qualify for the leave, employees must have worked for the employer for at least 30 days. Employees must take the leave pursuant to the employer’s existing leave policy. If an employer has an existing policy in place that pays employees for bereavement leave, this leave must be paid. If the employer does not have a policy in place, the leave is unpaid. An employee may use their accrued paid vacation or sick leave in order to take the bereavement leave as paid leave.

It is unlawful for employers to discriminate or retaliate against employees who exercise their right to use bereavement leave.The law requires the employer to maintain employee confidentiality relating to the leave and contains an antidiscrimination provision. Employers may require certain documentation as proof of the passing of a family member.

AB 1949 does not apply to employees who are covered by a valid collective bargaining agreement that provides for bereavement leave under specific circumstances as described in the bill.

How:

  • Update your bereavement leave policies to comply with the law.
  • Monitor the California Civil Rights Department for updated posters, guides, and fact sheets.

Additional Resources:

AB 1949

California Civil Rights Department Posters, Guides, and Fact Sheets

Who: California employers

When: Effective January 1, 2023

The California Department of Industrial Relations has published its thresholds for employers to qualify for salary exemptions for computer professionals and physicians in the new year. Employers must pay computer professionals a minimum of $112,065.20 a year, or $9,338.78 per month, or an hourly wage of $53.80. Employers must pay physicians and surgeons at least $97.99 per hour to qualify for the exemption.

The duties test under California Labor Code Section 515.5 remains unchanged. The increase in the exemption threshold is indexed to the California Consumer Price Index for Urban Wage Earners and Clerical Workers, which has increased by 7.6%.

How:

  • Review employee compensation and job duties for computer professionals and physicians and update your policies and procedures as needed to comply with the law.

Additional Resources:

Overtime Exemption for Computer Software Employees

Overtime Exemption for Licensed Physicians and Surgeons

Who: California employers

When: Effective January 1, 2023

Governor Gavin Newsom signed SB 1044 into law on September 29, 2022, which becomes effective January 1, 2023. The new law allows employees to leave work or refuse to report to work during an “emergency condition,” and prohibits employers from taking or threatening adverse action against employees for exercising their rights under the law when they have a reasonable belief that the workplace or worksite is unsafe.

An employee must notify the employer of the emergency condition they believe justifies them leaving work or refusing to report to work. The definition of emergency conditions is “conditions of disaster or extreme peril… caused by natural forces or a criminal act,” or an “order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.” The definition specifically excludes health pandemics. The law details other conditions when it does not apply.

The law prohibits employers from keeping an employee from accessing their mobile or another communication device to seek emergency assistance, assess their safety, or communicate with another person to confirm their safety.

The law excludes many categories of employees, including emergency responders and those who provide direct patient care. Refer to the bill to see a list of the exclusions.

How:

  • Update your policies and procedures as needed to comply with the law.

Additional Resources:

SB 1044

Who: California employers

When: Effective January 1, 2023

Effective January 1, 2023, the employee exception to privacy rules that was written into the California Consumer Privacy Act (CCPA) expires. Under the new law, California’s Privacy Rights Act (CPRA), employees, applicants, emergency contacts, beneficiaries, independent contractors, and members of board of directors will now have the same privacy rights as other consumers:

  • To know which personal information the employer has collected;
  • To request that the information be deleted or corrected;
  • To access their personal information;
  • To know which personal information the employer sells or shares and to/with whom and the right to opt out of such use; and
  • To limit the use of sensitive personal information.

Personal information is defined as “information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.” Sensitive personal information includes data that reveals an individual’s personal information, such as passwords or a Social Security number.

Employers must give employees notice of their rights under the CPRA and create a mechanism for employees to exercise their rights. The law also includes an anti-retaliation provision for exercising one’s rights under the law.

In addition to the removal of the employee exception, the CPRA removes the exception for business-to-business (B2B) transactions. Businesses now have to give the businesses they transact with notice of their rights under the law and protect the information as they do for any consumer.

A business may deny a request to delete or amend personal information if it would be impossible to do, if it involves disproportionate effort, or if it is manifestly unfounded or excessive. The employer bears the burden of proof and should document all denials in detail.

How:

  • Consult with legal counsel as needed to ensure compliance with the CPRA requirements.
  • Work with HR and IT to map the personal information you collect about employees and B2B transactions, along with the personal information that your service providers and third parties collect on your behalf.
  • Update your right-to-privacy notices and distribute them to employees and B2B partners.
  • Amend agreements with service providers who handle employment-related information and vendors who handle your B2B information.
  • Update your policies, procedures, and forms to comply with the new privacy laws.
  • Provide training to employees on the updated privacy laws.

Additional Resources:

Modified Text of Proposed Regulations

California Consumer Privacy Act Regulations

Who: California employers

When: Effective January 1, 2023

Governor Gavin Newsom signed AB 1601 into law on September 29, 2022, which goes into effect on January 1, 2023. The law states that employers of customer service employees in a call center are not allowed to move their call centers or one or more of their facilities or operating units within a call center to a foreign country unless they give prior notice in compliance with the California Worker Adjustment and Retraining Act (Cal/WARN).

Covered employers under Cal/WARN are industrial or commercial facilities that operate a call center and employ or have employed 75 or more people in the preceding 12 months. AB 1601 defines a call center as a facility or other operation where workers receive telephone calls or other electronic communication for the purpose of providing customer service or other related functions as their “primary function.”

Under the new law, the Employment Development Department (EDD) will publish a list of employers that must provide notice of relocation in order to comply with AB 1601.

How:

  • Review and update your internal policies and documentation as needed to comply with the law.

Additional Resources:

AB 1601

Who: California employers with 15 or more employees

When: Effective January 1, 2023

Governor Gavin Newsom signed SB 1162—a pay transparency law—on September 27, 2022, which goes into effect on January 1, 2023. The law requires all employers to provide the pay scale for a position to an applicant who requests it and to a currently employed employee who requests it for their own position. In addition, all employers must maintain job title and wage history records for all employees for the length of employment, plus three years.

There are additional requirements that apply to employers with 15 or more employees. First, employers must include the pay scale in all job postings. A pay scale is defined as the salary or hourly range that the employer reasonably expects to pay for the position. Second, if an employer uses a third party to post jobs, they must provide the pay scale to the third party so they can add it to the job posting.

Since 2020, private employers with 100 or more employees have had to submit pay data to the California Civil Rights Department (CRD) each year. SB 1162 changes the due date for that data to the second Wednesday in May 2023, and the second Wednesday of every year after. The data includes the number of employees by race, ethnicity, and sex for 10 job categories during a single pay period between October 1 and December 31 of the prior year.

Under SB 1162, covered employers must report the median and mean hourly rate for each job category and each combination of race, ethnicity, and sex. SB 1162 eliminates the requirement for employers with multiple establishments to also file a report for all employees as a consolidated unit. Employers with 100 or more employees that were hired through labor contractors must submit a separate report to the CRD.

Employers that violate the pay transparency law face penalties of $100 and $10,000 per violation. Employers that violate the pay data reporting requirements face penalties of $100 per employee for the first violation and up to $200 per employee for each additional violation.

Employers must retain wage rate history and job titles for all employees for at least three years after termination.

How:

  • Determine the pay scales for existing positions.
  • Update your policies to comply with the law.
  • Ensure that all job postings for open positions include pay scale information.
  • Consider completing a pay equity audit.
  • Update your record retention policies.

Additional Resources:

SB 1162

California Safety News

Who: California employers with multiple worksites

When: Effective January 1, 2022

What: On September 27, 2021, California Governor Gavin Newsom signed SB 606, directly impacting businesses with multiple worksites. The new law is effective January 1, 2022. It gives Cal/OSHA the authority to issue a citation that encompasses an entire business when they find that:

  • One worksite has a written policy or procedure that isn’t compliant with a Section 25910 health safety code, rule, standard, order of regulation; or
  • A business has a pattern of violations involving multiple worksites.

In other words, if there is a violation at one worksite, Cal/OSHA will presume the same violation is occurring at all company locations or worksites. Enterprise-wide violations could cost companies up to $124,709 per violation.

The law also creates a category for “egregious violations,” a definition that applies when Cal/OSHA determines that one or more of the following seven circumstances has occurred:

  1. The business consciously, intentionally, knowingly, or through voluntary action/inaction made no “reasonable effort” to fix a known violation.
  2. The violation(s) resulted in a fatality, catastrophe (defined as inpatient hospitalization of three or more employees resulting from a workplace injury, exposure, or illness), or a large number of injuries or illnesses.
  3. The employer has a persistent high rate of injuries or illnesses.
  4. The employer has an extensive prior history of violations.
  5. The business has intentionally disregarded its health and safety responsibilities.
  6. The employer’s conduct demonstrates bad faith in performing their duties.
  7. The employer has committed a large number of violations that significantly undermine the effectiveness of its health and safety program.

Cal/OSHA can issue repeat citations for egregious violations if the underlying conduct occurred in the last five years. Each employee subject to an egregious violation is considered a separate violation regarding fines and penalties, which can be up to $134,334 per violation.

The law also significantly expands Cal/OSHA’s authority to seek an injunction to restrain certain uses or operations of a business. Previously, Cal/OSHA could only take such an action in the case of “a serious menace” to the lives or safety of people at the workplace. Now it can seek an injunction any time it has grounds to issue a citation.

In addition, the law gives Cal/OSHA the authority to issue a subpoena if an employer doesn’t promptly provide requested information. As determined by Cal/OSHA, it can enforce the subpoena if the employer fails to provide the requested information within a “reasonable” amount of time, as determined by Cal/OSHA.

How:

  • Review your workplace policies and procedures, including your Injury and Illness Prevention Program, across all locations to ensure they are up to date and compliant with Cal/OSHA regulations.
  • Review and ensure all your workplace health and safety protocols related to COVID are up to date and compliant.
  • Train all employees on the new law’s provisions and any changes you make to your safety policies and procedures.

Additional Resources:

SB 606

California COVID News

Who: San Francisco employers and employees

When: Effective October 1, 2022

What: Proposition G was passed and will become effective on October 1, 2022, which allows private employers who employ 100 or more people worldwide and at least 1 person in San Francisco to provide up to 80 hours of California Public Health Emergency Leave for employees. The Public Health Emergency Leave will be provided in addition to standard paid sick leave.

The Public Health Emergency Leave will only be in effect for qualifying reasons related to public health emergencies, including:

  • Formal recommendations of a federal, state, or local health order
  • Recommendations by an employee’s healthcare provider to isolate or quarantine
  • The employee is experiencing symptoms of and seeking a medical diagnosis or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease associated with the Public Health Emergency
  • The employee is in the care of a family member who falls into one of the three previous qualifications
  • The employee is in the care of a family member whose school or place of care has closed due to the Public Health Emergency.
  • The employee primarily works outdoors and is a member of the vulnerable population during an air quality emergency alert also known as the “Spare the Air Alert”.

Employers will be required to post the City & County of San Francisco Public Health Emergency Leave Poster  notice informing employees of the paid leave that is released by the San Francisco Office of Labor Standards Enforcement.

How:

  • Post the City & County of San Francisco Public Health Emergency Leave Poster Notice in the workplace informing employees of the Public Health Emergency Leave.
  • Educate and inform your employees about state mandates and safety protocols.

Additional Resources:

Proposition G

City & County of San Francisco Public Health Emergency Leave Poster

San Francisco COVID-19 Resources

San Francisco Department of Health

San Francisco Office of Labor Standards Enforcement

Who: California employers

When: May 6, 2022

Update 5/10/22: Following the third adoption of the ETS in May 2022, Cal/OSHA released:

Update 4/28/22: Cal/OSHA adopted the latest version of the ETS, going into effect once it is approved by the Office of Administrative Law, likely by May 5, 2022. The standard will remain in effect from May 6, 2022 until December 31, 2022. New FAQ guidance is expected soon and is expected to clarify the ETS and CDPH’s updated isolation and quarantine guidelines. Changes to the ETS include:

  • All employees are still covered but with a few exceptions: workplaces with one employee who has no contact with others; employees working from home, employees covered by Cal/OSHA’s aerosol transmission standards (e.g., workers in laboratories, health care facilities, etc.), and employees teleworking from a location not controlled by the employers.
  • Employers should check CDPH guidance and create and implement policies that prevent the transmission of COVID-19 by close contacts.
  • “Close contact” and “high-risk exposure” definitions were adjusted to reflect CDPH’s guidance, e.g., “high-risk exposure” is now an “infectious period.”
  • The face covering definition was updated to remove language about holding a mask up to a light to see if it shines through the material. Face covering requirements were also updated to reflect and reference CDPH guidance. Employers must still adhere to other applicable requirements like permitting employees to voluntarily wear face coverings unless it poses a safety hazard. Employees that are exempt from wearing facing coverings no longer need to adhere to social distancing requirements but still need to be tested at least weekly.
  • The term “fully vaccinated” was deleted and doesn’t distinguish between vaccinated or unvaccinated employees.
  • It also removes return-to-work criteria for close contact employees, employers are meant to follow CDPH or local area guidance.
  • The term “returned cases” was added as a new definition for COVID-19 cases in the 90 days after the symptom onset, or first positive test) for those employees who returned to work following the ETS’ criteria and didn’t develop COVID-19 symptoms. All COVID-19 cases (regardless of vaccination status or prior infection) can’t return to work until five days have passed from the first symptom onset or first positive COVID-19 test, a minimum of 24 hours has passed since the employee had a fever of 100.4 F or higher, and a negative COVID-19 test result after five days or later, or 10 days after the first symptom onset if the employee was unable to get a test.
  • Removal of the cleaning and disinfection rules
  • Updated outbreak requirements: Employees who have had close contact must have a negative test within three to five days after the contact or must be excluded from and follow return-to-work guidance. Employees should maintain as much distance as is feasible, rather than using partitions where six feet of distancing can’t be met. Employers are required to have exposed employees get tested twice a week during a major outbreak or exclude exposed employees from work and have them follow return-to-work criteria.

Update 4/9/2022: Cal/OSHA will plan to readopt the emergency temporary standard for the third time, forgoing the proposed expiration date of May 5, 2022. A meeting to discuss proposed adoption changes and the removal of certain requirements to the ETS is set to be held on April 21, 2022. If passed, Cal/OSHA claims that this will be the final version of the ETS and will remain in effect until December 31, 2022.

Update 2/28/2022: Executive Order N-5-22 was signed by Governor Newsom, which states that masks will no longer be required for unvaccinated workers indoors starting on March 1st, 2022, but is still recommended. The Cal/OSHA ETS that was set to expire on April 14, 2022 been extended to May 5, 2022. Cal/OSHA will review the mask guidance set forth by the California Department of Public Health to determine whether the ETS will be readopted following the May 5th deadline.

Effective January 14, 2022 to April 14, 2022, although under  Executive Order N-23-21, the OSHA Standards Board could readopt the ETS for a third time and extend the April 14, 2022 date.

UPDATE: On January 14, 2022, Cal/OSHA issued updated information about ETS Fact Sheets and FAQs to address isolation and quarantine times. For individuals who are eligible for a COVID-19 booster but haven’t received it and are exposed to COVID-19, they do not need to quarantine provided they are asymptomatic and receive a negative test after 3-5 days.


Background from January 3, 2022:

What: The Cal/OSHA Standards Board has readopted its original COVID-19 Emergency Temporary Standard (ETS), including a number of revisions that include COVID-19 testing, social distancing rules, and face covering requirements for fully vaccinated employees under some circumstances. Below are the main revisions that employers need to know about and how to prepare for January 14, 2022.

Updated definitions were made for “face coverings,” “worksite,” “fully vaccinated,” and “COVID-19 test.” Face coverings now include the use of fabric that won’t allow light to shine through when held up to a light source as well as having a snug fit over mouth, nose and chin, and face coverings with a clear, plastic panel are allowable when used with people hard of hearing or deaf. COVID-19 tests now include home, over-the-counter, and point-for-care tests. Tests can’t be self-administered or read unless an employer or telehealth worker observes. Fully vaccinated includes vaccines administered during a clinical trial, although doesn’t include the mention of booster shots. The definition of worksites was updated to eliminate locations where employees worked alone, without any exposure to other employees, or worked at home or another alternative workspace while working remotely.

Screening for COVID-19 symptoms: If conducted indoors, screeners and employees must wear face coverings, regardless of if they’re vaccinated or not. Previously, fully vaccinated people did not need to wear a face covering.

Post-exposure notifications must be still be sent to all employees, and the ETS now clarifies that workers on-site at the same worksite as the COVID-19 case during the high-risk exposure timeframe must be notified within one business day. The notice must be sent through whatever the normal communication channels are for the organization. What should you do? Review your COVID-19 notification process still complies and uses a typical communication channel for your organization.

Post-exposure testing must be made available to fully vaccinated, asymptomatic employees at no cost. The initial ETS didn’t require this unless the vaccinated employee showed COVID-19 symptoms.

Excluding workers who are positive for COVID-19 from the workplace remains in place, but the readoption includes a clarification around fully vaccinated employees and those workers with natural immunity to the virus. These individuals don’t have to be excluded from the workplace if they have been exposed to COVID-19 and are asymptomatic, but they must wear a face covering and maintain social distancing for 14 days. Employers must provide these workers with information about precautions recommended by the California Department of Public Health.

The readoption of returning to work does not just apply to essential workers but all employees after coming into close contact with someone who has COVID-19, and includes several details for anyone who has been asymptomatic for 14 days following the exposure. These workers may return to work after the 14 days unless:

  • 10 days have passed, and the worker wears a face covering and maintains social distancing for 14 days
  • Seven days have passed, the worker tests negative for five consecutive days, and the worker wears a face covering and maintains social distancing requirements from others for 14 days.

The standard for multiple infections and outbreaks remains the same but now includes the requirement that employers must provide testing to employees, regardless of their vaccination status. Outbreaks are still defined as being three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

Employer-provided housing must now include HEPA air filters in all sleeping areas, where MERV 13 filters or higher aren’t being used, regardless of the number of employees residing in the space. Employers must also test all residents of employer-provided housing in the case of three or more COVID-19 positive cases in 14 days. Employers must also quarantine employees, regardless of their vaccination status, if anyone has come into close contact with a COVID-19 case.

Employers must provide face coverings to all employees, regardless of vaccination status, taking employer-provided transportation.

Next Steps:

  • Review and update your COVID-19 Written Program to ensure it meets with the changes in this most recent readoption and consult legal counsel.
  • Ensure that you have enough available face coverings or have the ability to access a supply if you need to provide them to employees.
  • Be sure to communicate any policy and procedures changes with your employees.

Additional Resources

UPDATED 1/18/22: Revisions to the COVID-19 Prevention Emergency Temporary Standards (effective January 14, 2022) Frequently Asked Questions

UPDATED 1/18/22: What Employers Need to Know About the December 16 Standards

UPDATED 1/18/22: COVID-19 Isolation and Quarantine – What Employers and Workers Need to Know

California COVID-19 Resources

California Department of Public Health

California Executive Orders

UPDATE – COVID-19 Prevention Emergency Temporary Standards What Employers Need to Know About the December 16 Standards December 16, 2021 Fact Sheet

COVID-19 Prevention Emergency Temporary Standards – Fact Sheets, Model Written Program and Other Resources

COVID-19 Emergency Temporary Standards Frequently Asked Questions

Revisions to the COVID-19 Prevention Emergency Temporary Standards Frequently Asked Questions

Who:

  • Employers with more than 25 employees.
  • Smaller employers aren’t covered but might be covered by local supplemental paid sick leave rules.

When: Effective February 19, 2022, retroactive from January 1, 2022, through September 30, 2022

What: On February 9, 2022, Governor Newsom signed SB 114. Although the bill is retroactive to January 1, 2022, employers’ obligation to provide 2022 COVID-19 supplemental California paid sick leave (SPSL) doesn’t begin until February 19, 2022.

For businesses that complied with the 2021 SPSL law, most of the new law will be similar, but there are some differences. For example, where the Cal/OSHA COVID-19 Emergency Temporary Standards or Cal/OSHA’s Aerosol Transmissible Diseases Standard requires employers to track an employee’s earnings when the worker is excluded from work because of exposure to COVID-19, employers can’t require an employee to first use SPSL.

Additionally, businesses may have to comply with the 2022 law as well as local COVID-19 supplemental paid sick leave ordinances.

Who qualifies for the 2022 SPSL

Employees who can’t work or telework may use SPSL for qualifying reasons, including:

  • A COVID-19-related quarantine or isolation period as defined by federal, state, or local regulations
  • A health care provider has advised the employee to self-quarantine or isolate for COVID-19-related reasons.
  • The employee or employee’s family member (defined as child, grandchild, grandparent, parent, sibling, or spouse) is receiving a COVID-19 vaccine or booster
  • An employee or family member shows symptoms related to the COVID-19 vaccine or booster that prevents the person from working or teleworking.
  • An employee is showing symptoms of COVID-19 and is getting a medical diagnosis
  • An employee is caring for a family member under a COVID-19-related quarantine or isolation or has been advised to self-quarantine or isolate by a health care provider.
  • An employee needs to care for a child whose school or day care has closed or is unavailable for COVID-19-related reasons
  • A COVID-19 positive test or caring for a family member who tests positive for COVID-19.

Amount of SPSL Leave

The leave calculation is different from the 2021 law by establishing two “up to 40-hour” leave banks.

  • The first “up to 40-hour” leave bank is available only if the employee tests positive or cares for a family member who tests positive for COVID-19.
  • The second “up to 40-hour” leave bank is available only for other covered reasons like quarantine, isolation, vaccine or booster appointments, child care/school closure, etc.

The second leave bank may be limited to three days or 24 hours and is only applicable to a vaccine booster shot or vaccine shot.  If a health care provider verifies an employee’s symptoms related to a vaccine or booster, over three days/24 hours may be available to the employee. The law doesn’t provide guidance regarding categorizing an employee’s use of the first or second leave bank.

The maximum amount of leave an employee may receive is 80 hours for full-time employees and a proportionate amount of time for other employees. Full-time employees should receive 40 hours for each leave bank if the employee is considered full-time or has worked or was scheduled to work on average at least 40 hours per week in the preceding two weeks from the date they took leave.

Other employees should receive the total number of hours they are regularly scheduled to work over one week for each leave bank. Those who work a varying number of hours and have a tenure of at least six months should receive seven times the average number of hours they worked every day in the six months before their leave date for each leave bank. If the employee has only worked between eight days and six months, employers must use the same calculation for the employee’s entire employment period. Employees who worked seven days or less should receive hours equal to their total number of hours worked for each leave bank.

If employees already received paid leave in 2022 before the law took effect, the leave might satisfy the employer’s 2022 SPSL obligations. The leave must be of equal or greater value than the amount of pay that the law requires and must have been a supplemental benefit, meaning that employers can’t have used paid sick leave under California’s Healthy Workplaces, Healthy Families Act, or the 2021 SPSL. If the leave was compensated at a lower rate than the current law, employers must retroactively increase the pay to the 2022 SPSL. If the payment is made because of the employee’s request, payment must be made on or before the next full pay period payday.

In situations where employers paid an equal or greater amount than the 2022 SPSL requirement and the employee requests to apply the 2022 SPSL to a prior absence, the employer must apply the 2022 SPSL to that absence.

Employee Obligations to Use Leave

Employees may choose if they will use SPSL leave or another paid or unpaid leave to cover an absence.

Employees may make an oral or written request to use 2022 SPSL leave immediately starting on February 19, 2022.

The law doesn’t generally contain language if employers ask employees to submit documentation of their leave needs.

Employers can require employees to provide documentation of a test result when leave is being used for a positive COVID-19 test result for the employee or family member. If the employee refuses documentation, employers can deny the request.

When an employee or family member tests positive, employers may require employees to take another test on or after the fifth day following the first test and submit the results. In this scenario, employers must provide the test at no cost.

Rate of Pay

The pay rate calculation can’t use a “highest of” pay rate standard for non-exempt employees, which was acceptable under the 2021 law. The regular rate of pay is calculated one of two ways:

  • The same as the regular rate of pay for the workweek, the employee uses the paid leave, regardless of if the employee works overtime
  • Dividing the employee’s total wages by the employees total non-overtime hours worked in full pay periods within the previous 90 days worked as long as the pays the employee by a “piece rate, commission, or another method that uses all hours to determine the regular rate of play.”

For exempt employees, SPSL is calculated like other paid leave time and caps the amount to be paid at $511/day or $5,110 total.

Notice Requirements

On February 17, the California Labor Commission published the model poster (English | Spanish) for employers to display in a prominent place or distribute the poster electronically.

Employers must also report available SPSL on paystubs or other written notices employees receive on payday. The paystub requirement isn’t enforceable until the next complete pay period after February 19, 2022. Retroactive payments must also be displayed on the paystub for the pay period the payment was made. Employers only need to report the 2022 SPSL hours that an employee has used or using zero-hours until an employee uses the leave.

Next Steps:

  • Post in a prominent workplace area or email the COVID-19 Supplemental Paid Sick Leave 2022 poster to employees.
  • Determine how you will itemize and display the 2022 Supplemental Paid Sick Leave amounts that show how much time an employee has used.
  • Employers located in Long Beach, Los Angeles (City and County), and Oakland should monitor local agency websites for additional information regarding the interaction between local paid sick leave ordinances and the 2022 SPSL.
  • Employers should review their current supplemental paid sick leave policies and procedures and develop an action plan to update them in compliance with the 2022 SPSL, seeking legal counsel for additional guidance.
  • Employers should be ready to communicate these changes with their employees.
  • Review the 2022 COVID-19 SPSL FAQs for additional guidance.

Additional Resources

COVID-19 Supplemental Paid Sick Leave 2022 (Spanish)

COVID-19 Supplemental Paid Sick Leave 2022 (English)

SB 114

California COVID-19 Resources

California Department of Public Health

California Executive Orders

FAQs on Exclusion Pay Under the Emergency Temporary Standard

California Department of Industrial Relations Workplace Postings

2021 COVID-19 Supplemental Paid Sick Leave FAQs

2022 SPSL FAQs

Who: California residents and businesses

When: Effective Immediately

What: On February 17, 2022, Governor Gavin Newsom announced a plan that shifts California’s approach to COVID-19 from a pandemic to an endemic phase, meaning to formalize policies and initiatives to live with the virus as immunity to it increases. The plan is focused on prevention and fast response to outbreaks.

The new approach is for Shots, Masks, Awareness, Readiness, Testing, Education, and Rx (SMARTER). The plan involves a number of elements including:

  • Stockpiling 75 million masks
  • In the case of an outbreak, implementing an infrastructure that can provide up to 200,000 vaccinations/day, 500,000 tests/day, and places 3,000 health care workers in the outbreak location within three weeks
  • Making sure that local agencies have the ability to order effective therapeutics within 48 hours
  • Increase vaccination sites at schools by 25% as eligibility expands
  • At first signs of a surge in cases, increase monitoring for the virus in wastewater
  • Encouraging the use of masks in a number of settings
  • Determine if a surge in cases is the result of a new variant and within 30 days determine its response to existing tests, treatments, and immunity from vaccines or prior infections.
  • The state vaccine requirement (by the fall of 2022) for school-aged children remains in effect.
  • The plan includes the products of “myth-buster” videos to dispel misinformation

Through these initiatives the SMARTER plan seeks to prevent businesses from closing, the need for extensive mandates, and shift the response to COVID-19 towards normalcy.

Next Steps:

Continue to monitor for ongoing changes that will impact employers and businesses.

Additional Resources

California COVID-19 Resources

California Department of Public Health

California Executive Orders

California SMARTER Plan

Who: California healthcare employers and employees

When: Effective February 1st, 2022

What: Due to the rising spread of the Omicron variant, the state of California has issued an order requiring all healthcare workers, adult care facilities workers, and direct care workers to receive a COVID-19 vaccine booster shot by February 1st.

Per the order, healthcare workers are defined as any paid and unpaid individual who works in an indoor setting where care is provided to patients. These workers include those who operate within:

  • General acute care hospitals.
  • Skilled nursing facilities (including subacute facilities).
  • Intermediate care facilities.
  • Acute psychiatric hospitals.
  • Adult day health care centers.
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE centers.
  • Ambulatory surgery centers.
  • Chemical dependency recovery hospitals.
  • Clinics and doctor offices (including behavioral health, surgical).
  • Congregate living health facilities.
  • Dialysis centers.
  • Hospice facilities.
  • Pediatric day health and respite care facilities.
  • Residential substance use treatment and mental health treatment facilities.
  • Adult and senior care facilities licensed by the California Department of Social Services

Workers affected by this order include, but are not limited to:

  • Support services staff.
  • Hospice providers.
  • Physicians.
  • Nurses.
  • Nursing assistants.
  • Technicians.
  • Therapists.
  • Waiver personal care services (WPCS) providers.
  • In-home supportive services (IHSS) providers.
  • Registered home care aides.
  • Certified home health aides.
  • Students.
  • Trainees.
  • Contractual staff not employed by the residential facility, but who could be exposed to infectious agents, such as administrators, security officers, custodians, and volunteers.

Workers currently not eligible for a booster shot by February 1st must be in compliance with the order no later than 15 days following the recommended timeframe. Vaccine exemption is available for workers who decline the vaccination requirement on the grounds of religious beliefs or medical reasons, provided the worker can produce a declination form to their employer. Workers exempt from vaccination must follow state-ordered testing and masking requirements.

How:

  • Review your current policies and procedures and update them to comply with the current order.

Additional Resources:

California COVD-19 Resources

California Department of Public Health

California COVID-19 Executive Orders

Public Order Questions and Answers: Healthcare Worker Vaccine Requirement

Who: California employers and employees

When: Effective immediately through February 15, 2022

What: On January 5, 2022, California extended its statewide masking mandate from January 15, 2022 to February 15, 2022 due to the spread of the COVID-19 Omicron variant. On February 15, 2022, the mandate will be reevaluated and potentially extended.

All people over the age of 2 are required to wear a face mask in all public settings, such as restaurants and retail stores, regardless of personal vaccination status.

The state of California recommends N95 and KN95 masks as the most effective facial coverings to prevent the spread of COVID-19. Double masking is also encouraged.

The new mandate comes in response to a nearly 500% rise of Omicron cases reported across California within the first two weeks of 2022.

California’s health director has stated that at this time, no additional statewide measures or restrictions are being considered to limit the spread of COVID-19.

As of January 2022, roughly 80% of Californians have received at least one dose of a COVID-19 vaccine.

How:

Review your current policies and procedures and update them to comply with the current mandate

Educate and inform your employees about state mandates and safety protocols.

Additional Resources:

California COVD-19 Resources

California Department of Public Health

California COVID-19 Executive Orders

California Department of Public Health Guidance for the Use of Face Coverings

California Face Mask Fact Sheet

California Face Coverings Q&A

Get the Most out of Masking

Who: California employers and employees

When: Effective December 15, 2021 through January 15, 2022

What: On December 13, 2021, Governor Gavin Newsom’s administration announced the return of an indoor mask mandate for the state of California for all public areas effective beginning December 15, 2021 until January 15, 2022. The order extends to all California residents and visitors regardless of vaccination status.

The new guidance comes following vaccination mandates for California state employees, healthcare workers, and public school teachers and students. As of December 14th, over 70% of eligible California residents have been fully vaccinated against the Coronavirus.

The indoor mask mandate is being enforced as a response to a rapid rise in local cases of COVID-19 across the state of California and as a mitigating factor against the spread of the Omicron variant. Within the two weeks prior to December 14th, 2021, the number of reported Coronavirus cases have increased by nearly 50%, and hospitalizations due to COVID-19 are up to nearly 15%.

California counties including Los Angeles, Ventura, Sacramento, and the majority of the San Francisco Bay Area have issued their own individual indoor mask mandates prior to the December 14th state guidance and currently have no end dates. Remember, where county and local mandates/orders are more restrictive than state-wide orders, you should err on the side of following the local mandates/orders.

Additionally, the state of California has ordered unvaccinated people attending indoor events of 1,000 people or more to produce a negative COVID-19 test prior to attendance. Those traveling are also recommended to get tested within three to five days of their arrival or return to California.

The first reported case of the Omicron variant within the United States was discovered on December 1st, 2021 in California. As of December 14th, over half of all states within the US have reported cases of the Omicron variant.

Per the new guidance, California employers remain subject to the regulations and requirements of the California/OSHA COVID-19 Temporary Standards and in some cases, the regulations and requirements of the California/OSHA Aerosol Transmissible Diseases Standard.

How:

  • Review your current policies and procedures and update them to comply with the current law.
  • Educate and inform your employees about state mandates and safety protocols.

Additional Resources:

California Department of Public Health Guidance for the Use of Face Coverings

California Department of Public Health Guidance

State of California COVID-19 Resources

State of California Executive Orders

Upcoming California Events

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