Expansion of CFRA and Paid Sick Leave to Cover “Designated Person”
AB 1041: Government Code § 12945.2 (amended) & Labor Code § 245.5 (amended)
AB 1041 expands the class of people for whom an employee under the California Family Rights Act (CFRA) may take leave to care for to include any “Designated Person,” which is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the employee requests leave.
AB 1041 also expands the definition of “family member” under California’s paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014) to include any “designated person”, which is defined as any individual identified by an employee at the time a request for paid sick leave is made.
Under each amended law, an employer may limit an employee to one designated person per 12-month period.
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Employer Pro Tips:
- Update Internal Leave Policies: Employers should update their CFRA and sick leave policies to ensure that leave and sick time off is available for employees caring for designated persons. Employers should also clarify, if desired, that a designated person is limited to 1 person per 12-month period.
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Expansion of CFRA to Offer Bereavement Leave
AB 1949: Government Code § 12945.7 (added); Government Code §§ 12945.21, 19859.3 (amended)
AB 1949 amends California’s Family Rights Act to require private employers with 5+ employees to provide eligible employees with up to 5 days bereavement leave within 3 months of the death of the employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. The 5 days need not be taken consecutively.
Eligible employees are those who have been employed at least 30 days prior to the leave request.
In the absence of a pre-existing policy providing for paid leave, leave may be unpaid, provided that employers will be required to allow concurrent use of other forms of paid leave, if available, including paid sick leave or vacation.
Employers cannot retaliate or discriminate on the basis of an employee exercising their right to take bereavement leave and must maintain the confidentiality of any employee requesting to take bereavement leave.
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Employer Pro Tips:
- Review and Update Internal Leave Policies: Employers should review their leave polices to ensure that employees are afforded 5 days of bereavement leave (which can be unpaid) in the event of the death of an employee’s close relative. Employers should update their policies to make clear that employees will suffer no adverse employment action based on their decision to utilize the leave provided to them under the law.
- Train Your Staff: Prepare employees on how to promptly report any complaints of discrimination or retaliation related to exercising their rights to leave. Ensure that appropriate personnel understand (i) how to promptly respond to such complaints, and (ii) the requirements of maintaining confidentiality as it relates to leave requests.
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New Protections in the Event of an Emergency Condition
SB 1044: Labor Code Chapter 11 of Part 3 of Division 2 (added)
SB 1044 prohibits employers from taking or threatening to take an adverse action against employees who, in the event of an “emergency condition,” refuse to come into work or leave work due to a reasonable belief that the worksite is unsafe.
“Emergency condition” is defined to mean a disaster or extreme peril to the safety of person or property at the workplace caused by natural forces or a crime, or an evacuation order due to a natural disaster or crime at the workplace, an employee’s home, or their child’s school. It specifically excludes health pandemics.
In the event of an “emergency condition,” employers cannot prevent employees from accessing their mobile devices or other communication devices to seek emergency assistance, assess the safety of the situation, or communicate with a person to verify their safety.
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Employer Pro Tips:
- Train Your Staff: Train managers as part of emergency preparedness to understand and support employee rights during an emergency.
- Update Emergency Policies: Update existing emergency protocols and procedures to reflect available rights of employees in the event of an emergency condition.
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Extension of COVID-19 Supplemental Sick Leave
AB 152: Government Code Article 9.1 of Chapter 1.6 Part 2 of Division 3 of Title 2 (added and repealed); Labor Code §§ 248.6, 248.7 (amended)
AB 152 extends the existing paid time off available under COVID-19 supplemental paid sick leave through December 31, 2022.
The total maximum amount of COVID-19 supplemental paid sick leave a covered employee is entitled is 80 hours for the period between January 1, 2022, and December 31, 2022.
After an employee tests positive for COVID-19, an employer may require that the employee submit to a diagnostic test on or after the first positive test, and, if that test is positive, employer can require a second diagnostic test within no less than 24 hours (at the cost of employer).
Employers have no obligation to provide COVID-19 supplemental paid sick leave if an employee refuses to provide documentation of a positive test result for the employee or employee’s family member, or if the employee refuses to submit to diagnostic tests.
San Francisco Proposition G (“Public Health Emergency Leave Ordinance”)
Effective October 1, 2022, employers with 100+ employees must provide up to 80 hours of paid leave during a public health emergency (as declared by the City of San Francisco or California’s health officer or when the Bay Area Air Quality Management District issues a Spare the Air Alert) to each employee who performs work in San Francisco.
The paid leave is in addition to any other PTO to which the employee is entitled, provided that it can be offset by time taken under COVID-19 Supplemental Sick Leave after October 1, 2022. The ordinance’s requirements may be expressly waived in clear and ambiguous language in a collective bargaining agreement. Paid leave does not carry-over.
Employees may use this leave when they are unable to work due to: (1) recommendations or requirements of a federal, state, or local health order related to the Public Health Emergency; (2) the employee or the family member for whom they are caring has been advised by a Healthcare Provider to isolate or quarantine; (3) the employee or family member for whom they are caring is experiencing symptoms or has been diagnosed with a disease associated with the Public Health Emergency; (4) the employee is caring for a family member whose school or place of care has been closed due to the Public Health Emergency; or (5) an Air Quality Emergency if the employee is a member of a vulnerable population and primarily works outdoors.
Additional FAQs are available here.
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Employer Pro Tips:
- Update COVID-19 Policies and Continue Implementation: To the extent employers have written policies on COVID-19 Supplemental Sick Leave they should extend the deadline on such policy through December 31, 2022, and if desired, implement requirements for employees to submit to diagnostic testing to take such time off.
- Post Notice on Public Health Emergency Leave Ordinance: Employers with employees in San Francisco must post or otherwise make a notice on the Public Health Emergency Leave Ordinance easily available to employees, which can include via electronic communication, and/or posting in a conspicuous place in an employer’s web-based or app-based platform. Every employer shall provide the notice in English, Spanish, Chinese, and any language spoken by at least 5% of the employees who are, or prior to the Public Health Emergency were, at the workplace or job site.
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