This does not cover employees who work remotely and is in effect only until Dec. 31, 2020, or upon the expiration of any extension of the paid sick leave provisions of the FFCRA, whichever is later. This same bill created a family leave mediation pilot program for small employers and also requires employers to allow food employees working in any food facility to wash their hands every 30 minutes and additionally as needed.

Enhanced notice and reporting requirements

AB 685 requires employers to provide various notices to employees within one business day of receiving notice of potential COVID-19 exposure at the workplace and also to notify their local public health agency within 48 hours of any COVID-19 outbreak. "Outbreak" is defined by the California Department of Public Health as three lab-confirmed positive cases within two weeks.

While this law goes into effect as of Jan. 1, 2021, Cal-OSHA regulations in effect as of Nov. 30, 2020, cover all employees and places of employment with limited exceptions and outline extensive requirements with respect to COVID-19 prevention, multiple COVID-19 infections, and COVID-19 outbreaks. Importantly, the regulations include pay and reinstatement rights for employees who are excluded from work due to a positive COVID-19 test or due to an order to isolate issued by a local or state health official, if they are otherwise able and available to work unless the employer demonstrates that the COVID-19 exposure was not work-related.

Workers' compensation presumption

SB 1159, which went into effect in September 2020, established a rebuttable workers' compensation presumption for workers who contracted COVID-19 between Mar. 19 and Jul. 5, 2020, as well as a rebuttable workers' compensation presumption for first responders and health care personnel who contract COVID-19 after Jul. 6, 2020. This bill also created a workers' compensation presumption for employees who test positive during an "outbreak" at an employer with at least five employees and defines "outbreak" as (1) for employers with 100 or fewer employees, four positive tests within two weeks; (2) for employers with more than 100 employees, four percent of employees testing positive with two weeks; or (3) any place of employment ordered closed by public authorities due to a risk of COVID-19 infection.

Other new laws related to time off work

Expanded rights to family care and medical leave

SB 1383, effective Jan. 1, 2020, significantly expands the California Family Rights Act ("CFRA"), requiring all employers with five or more employees to provide up to 12 workweeks of unpaid leave per year for purposes of family care and medical leave. Qualifying reasons for leave are broadly defined to include caring for a family member – including grandparents, grandchildren, adult children, and siblings – with a serious health condition. This means that employers who have at least 50 employees, and therefore are also covered by the federal Family Medical Leave Act ("FMLA"), may now have to provide up to 24 weeks of unpaid leave in a 12-month period in certain circumstances.

Employees may designate sick leave at their own discretion

Employees are currently permitted to use their accrued sick leave to care for an ill family member. AB 2017 provides that employees may designate sick leave taken for any covered reason at their "sole discretion."

Expanded protection for employee victims of crime or abuse

AB 2992 expands the prohibition on discrimination and retaliation against employees who are victims of crime or abuse when they take time off for judicial proceedings or to seek medical attention or related relief for domestic violence, sexual assault, stalking, or other crime that causes injury to themselves or their child, or to participate in safety planning.

New laws related to equity and diversity

Private employers must be more transparent about pay data

On the heels of the "game-changer" Fair Pay Act that was signed in 2015 aimed at combating the gender pay gap, SB 973 is intended to provide a means to identify wage patterns and allow for targeted enforcement of equal pay and discrimination laws. California private employers with at least 100 employees must submit a pay data report to California's Department of Fair Employment and Housing (DFEH) by Mar. 31, 2021, and annually thereafter (if the employer is required to file an annual Employer Information Report under federal law).

The report must include the number of employees by race, ethnicity, and sex in various job categories, including executive or senior-level officials and managers, professionals, laborers and helpers, and service workers. Employers must provide the data in a format that allows the DFEH to search and sort it using readily available software.

Mandatory minority representation on boards of directors

California currently requires a publicly-traded corporation with its principal executive offices in California to have at least one female director on its board of directors, which must increase to two or three female board members by the end of 2021, depending on the size of the board. AB 979 expands on the diversification requirements by requiring that at least one director be from an underrepresented community by the end of 2021.

AB 979 defines "director from an underrepresented community" as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.

AB 979 is due to take effect at the end of 2021, with an additional year allowed for larger boards to find the greater number of underrepresented board members needed. Non-compliance can be costly. Companies not in compliance by the end of 2022 may face fines between $100,000 and $300,000 for each offense.

New laws related to independent contractors

Proposition 22 creates a new classification for gig-based drivers

On Nov. 3, 2020, California voters passed Proposition 22, which specifically classifies "app-based drivers" – those who drive for a network company that uses an online platform to facilitate on-demand deliveries or to connect passengers with drivers – as independent contractors. App-based drivers are now presumed independent contractors so long as (1) the network company does not require the driver to be logged into the platform on specific dates or during specific times of day, or for a minimum number of hours; (2) the network company does not require the app-based driver to accept any specific passengers or deliveries as a condition of maintaining access to the platform: and (3) the network company does not restrict the app-based driver from working in any other lawful job.

Though "app-based drivers" are considered independent contractors rather than employees under the law, Proposition 22 provides several employment benefits and protections that are typically reserved for employees. For example, app-based drivers are now entitled to minimum earnings and a quarterly healthcare subsidy. Proposition 22 also requires network companies to provide occupational accident insurance and some disability payments. As well, Proposition 22 requires network companies to develop anti-discrimination and sexual harassment policies and to develop training programs for drivers on driving, traffic, accident avoidance, and recognizing sexual assault and misconduct.

More occupations now excluded from the ABC test

After AB 5 went into effect on Jan. 1, 2020, workers in most industries were required to be evaluated under the "ABC test" to determine whether they were employees or independent contractors, with most workers falling as employees under that test. AB 2257, which went into effect in September, expanded the number of professions that are exempted from the ABC test and instead are subject to the common law test for employment status. The exemptions added primarily relate to creative work, such as a musician or musical group or an individual performance artist. Qualified professional services exempted were also expanded to include jobs like photographers, photojournalists, freelance writers, editors, newspaper cartoonists, fine artists, translators, content contributors, advisors, narrators, cartographers, producers, copy editors, and illustrators.

Outside of making changes related to creative work, AB 2257 also created additional exemptions for certain other occupations, including underwriters and other service providers in the insurance industry, manufactured housing salespersons, people engaged by an international exchange visitor program, consulting services, animal services, and competition judges with specialized skills. The bill also creates exceptions from the ABC test for licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators.

Sandra Rappaport is a top-tier labor and employment attorney and expert litigator. With nearly three decades of experience, she has successfully litigated on behalf of employers in federal and state court cases involving wage and hour issues, discrimination and harassment claims, disputes over unfair competition and trade secrets, whistleblowing claims, and more.

Jennifer Yazdi represents private and public employers in federal and state court litigation and before administrative agencies regarding discrimination, harassment, retaliation, breach of contract, wrongful termination, and numerous other types of employment law matters. She handles complex wage and hour class action litigation in both federal and state courts and counsels employers on a wide variety of employment issues, such as hiring practices, employment policies, disability accommodations and leave administration, etc.

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