Here is a summary of the top three new laws all California employers need to be ready for as we bid "adieu" to 2021 and welcome in 2022:
COVID-19: The one thing we have all learned over the last two years is that nothing in connection with COVID-19 stays the same for too long and laws regarding workplace protocols to protect against the spread of COVID are no exception. Cal/OSHA has updated its November 2020, Emergency Temporary Standard ("ETS") with the amendments kicking-in on January 14, 2022 and remaining in place until at least April 14, 2022. Cal/OSHA's most recent amendments to its ETS include:
- Mask Requirements: Cal/OSHA is requiring that all California employers provide unvaccinated employees with face covering of at least two layers and ensure that the unvaccinated employees are wearing the face coverings anytime they are in common areas within the workplace. Two things to note here: first, both the state of California and the Los Angeles Department of Public Health currently define "fully vaccinated" as those employees whom an employer has confirmed received, at least 14 days prior, the second dose of a two-dose COVID-19 vaccination series or a single dose COVID-19 vaccination. Second, employers located in Los Angeles county are held to a higher standard and must require all employees to wear masks while in common areas of the workplace regardless of their vaccination status.
- Returning to Work after "Close Contact" or a Positive COVID Diagnosis: The amended ETS creates a complex new set of protocols employers must follow when permitting employees who tested positive for COVID or who have been in "close contact" with a confirmed COVID case to return to work1. While these protocols vary depending on the exposed employee's vaccination status and whether the employee is asymptomatic, in summary, employees who have recently recovered from COVID and those "fully vaccinated" employees who have had "close contact" are not required to be excluded from the worksite, but they must wear masks and social distance for 14 calendar days after their COVID symptoms subside or the last date of contact.
It is important to note that, as of this Client Alert, California has not instituted a requirement that California employers mandate COVID vaccinations for their employees and the federal COVID vaccination mandate that would affect California employers with 100 or more employees, (which will be implemented through federal OSHA's ETS and not Cal/OSHA), is on-hold until at least January 7, 2022 when the US Supreme Court takes up the issue.
Settlement and Separation Agreements: In 2019, as part of the "#MeToo" movement, the California legislature passed a law that significantly curtailed the use of non-disparagement and non-disclosure provisions in settlement agreements involving claims of sexual harassment, sexual assault, or gender discrimination. SB 331 builds on these restrictions that seek to limit an employee's ability to disclose certain factual information regarding workplace complaints in several key ways. First, it expands the list of claims that cannot be subject to these provisions to allegations of harassment or discrimination based on any characteristic under the Fair Employment and Housing Act which can include race, physical or mental disabilities, gender identity or expression, and age. Second, it makes this prohibition now applicable to "any agreement" related to an employee's separation from employment, meaning that separation or severance agreements must now conform to this law as well as settlement agreements. Third, it makes it an "unlawful employment practice" for an employer to require an employee, as a condition of employment (or continued employment), to sign any document that would "deny the employee the right to disclose information about unlawful acts in the workplace". This law will have a substantial impact on the use of confidentiality, non-disparagement and non-disclosure provisions in employment agreements entered into after January 1, 2022. SB 331 provides several permissible work-arounds to its prohibitions such as limiting language and exclusions for "voluntary...negotiated" settlement agreements.
CFRA Changes: The California Family Rights Act ("CFRA") makes it an unlawful employment practice for an employer to refuse to grant a request by an "eligible" employee to take up to 12 workweeks of unpaid protected leave during any 12-month period for family care and medical leave. AB 1033 makes two significant changes to the CFRA. First, it clarifies that a covered "family member" now includes "parents-in-law". Second, AB 1033 revises and adds more depth to the CFRA's mediation program for small employers (defined as employers with 5-19 employees). Originally, the goal of the small employer mediation program was to protect small employers from costly lawsuits while at the same time protecting the rights of employees who believed they had been denied the full protections of the CFRA by permitting either party to request a mediation after a right to sue letter was issued. The problem was that if an employee requested an immediate right to sue letter, an employer would never receive notice of it in time to request a mediation prior to a lawsuit being filed. AB 1033 seeks to fix this problem by:
- Making participation in the mediation program a prerequisite to an employee filing a civil suit;
- Requiring all right to sue letters issued after January 1, 2022 to provide notice of this pre-lawsuit mediation requirement as well as instructions on how to initiate a mediation; and
- Allowing a small employer to stay a civil case or arbitration to pursue a mediation for any claim that was eligible for the program.
1 "Close contact" is defined as being within 6 feet of a person with COVID for a total of 15 minutes in any 24-hour period.
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