Introduction:
California provides greater statutory protection to employees employed in California than most states and the wise employer will remain fully aware of the myriad laws and regulations since significant penalties and legal costs arise if violated.
In 2020 the California Family Rights Act was expanded by the State to include far more employees under its protections. Further, employers are required to give particular notice to employees as to the existence of Covid 19 exposure. This article summarizes the new laws.
Basic Law Family Leave:
Senate Bill 1383 signed into law by the Governor in September 2020, expands the California Family Rights Act and applies to any entity employing people in California.
Prior Law: The California Family Rights Act (“CFRA”), previously in effect, applied to businesses with fifty or more employees who were employed within a seventy-five-mile radius of the business’ main location. Under the CFRA, these employers were to provide employees who worked a minimum of 1,250 hours in the previous year with twelve work weeks of unpaid leave (i) for the employee’s serious health issues, or (ii) to bond with a new child, or (iii) to care for a qualifying family member with a serious health condition. A “qualifying family member” formerly meant a parent, child, spouse or domestic partner. A “serious” health issue is an illness, injury, impairment, physical or mental condition that involves either inpatient care in a hospital, hospice, or residential health care facility, or one which requires continuing treatment or continuing supervision by a health care provider.
The employee must have the right to return to the same job at the end of the leave. Employers can only refuse such a request from employees who are among the highest paid ten percent of the employer’s employees. If the federal Family and Medical Leave Act (“FMLA”) also requires the employer to provide leave, CFRA leave may run concurrently with FMLA leave. The employer may require the employee to provide notice and supporting medical documentation.
In 2018, the Legislature passed the New Parent Leave Act, which expanded the obligation to provide leave to bond with a child to employers with twenty (20) employees or more.
New Law: At the end of the 2020 legislative session, the California State Legislature passed Senate Bill 1383 which is now the law. This bill expands the current CFRA as follows:
• The bill expands the application of the CFRA to employers with five (5) or more employees. There is no longer any requirement that the employees work within 75 miles of the employer’s main location.
• The bill expands the definition of a “qualifying family member” to include grandparents, grandchildren, and siblings.
• The bill also requires employers to grant leave because of a qualifying exigency related to the call to active military duty of an employee’s spouse, domestic partner, child or parent.
• Where both parents work for the same employer and wish to take leave to bond with a child, the current law allows the employer to limit the amount of leave taken to twelve (12) weeks. Under SB 1383, the employer must provide each parent 12 weeks’ protected leave – potentially at the same time.
• The exception for highly compensated employees is eliminated under the bill.
The new law takes effect on January 1, 2021.
COVID 19 NEW NOTICE LAW:
About the same time as the CFRA was expanded, the following law was enacted in which employers are required to give notice to employees as to possible exposure to the virus.
Notice to Impacted Employees of Possible COVID 19 Exposure:
Who Must be Notified: Upon receiving a “notice of potential [COVID-19] exposure” from a “Qualifying Individual”, within one business day, the employer must notify those employees, their union representative, and employers of any subcontracted employees, who were on the “worksite” with the qualifying individual. That said, the terminology used in the law is unclear as to whether a larger classification of employees must also receive a Notice with respect to certain content requirements under the law.
The terms “notice of potential exposure”, “qualifying individual” and “worksite” are defined as follows:
“Notice of potential exposure” includes receipt of any of the following: (1) notice from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite; (2) notice from an employee or their emergency contact that the employee is a qualifying individual; (3) notice through the testing protocol of the employer that the employee is a qualifying individual; or (4) notice from a subcontracted employer that a qualifying individual was on the worksite.
“Qualifying individual” means any person who has any of the following: (1) a laboratory-confirmed case of COVID-19; (2) a positive COVID-19 diagnosis from a licensed health care provider; (3) a COVID-19-related order to isolate provided by a public health official, or (4) a person who died due to COVID-19.
"Worksite" means, in general, the location(s) where a worker worked during the infectious period and not to buildings, floors, or other locations where the qualifying individual did not enter.
Content of Notice: The Notice must include information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as antiretaliation and antidiscrimination protections accorded the employee. The Notice should also tell workers of the disinfection and safety measures that will be taken at the worksite in response to the potential exposure.
Means of Distribution: The Notice must be provided in the manner normally used by the employer to communicate employment related information, and may include personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending. The Notice must be provided both in English and the language understood by the majority of the employees.
Notice to Local Public Health Department:
In addition, if an outbreak occurs at the worksite (defined as three or more laboratory-confirmed cases of COVID-19 among employees within a 14-day period), the local public health department must be notified within 48 hours. The employer must also continue to notify the local public health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. Health facilities are generally exempt from the reporting requirement.
Practical Applications:
Family leave now applies to almost any business employing people in California given the five or more employee limit versus the prior twenty or more minimum. While it is unpaid leave, the employer must understand that the key provision is that the employee must be allowed to return to the same employment. Significantly altering duties or locale could be considered constructive termination running afoul of the requirements of the statute. And note that the law now applies to all employees, regardless of where they work and if they are highly compensated.
As for the Covid 19 notice, it should be recalled that a violation of the notice requirement may be seen by the employee of proof of negligence of the employer in terms of workplace safety and for those employers having many employees, could expose the employer to substantial liability. This is a notice requirement that must be rigidly adhered to by any California entity.