As we approach the end of 2021, employers should be aware of new California employment laws that will go into effect on January 1, 2022. This article summarizes a handful of important new rules so that employers can review and update employee handbooks, separation agreements, nondisclosure agreements, and other policies and documents accordingly.
California AB 1033: Expansion of the California Family Rights Act
Under existing law, the California Family Rights Act (CFRA) requires employers with 5 or more employees nationwide to provide up to 12 workweeks of unpaid family and medical leave to eligible California employees for their own or their family members' serious health conditions. Effective January 1, 2022, the definition of "family member" will be expanded to include an employee's parent-in-law. A parent-in-law is defined as the parent of a spouse or domestic partner.
Employers should make sure that their CFRA policies include "parent-in-law" in their definition of family member.
California SB 331: New Requirements for Employee Settlement, Non-Disparagement, and Separation Agreements
In recent years, California law has placed restrictions on employers' use of non-disclosure provisions in settlement, separation, and non-disparagement agreements. Specifically, it has been unlawful for such agreements to purport to deny an employee the right to disclose information regarding a claim of harassment or discrimination based on sex. SB331 expands this prohibition, making it unlawful for a non-disclosure provision to preclude an employee from disclosing information regarding discrimination or harassment based on any protected characteristic under California's Fair Employment and Housing Act (not just sex).
SB 331 provides the following sample carveout language that employers should include in non-disclosure provisions in settlement, separation, or non-disclosure agreements: "Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful."
Furthermore, SB331 requires employers to include language in separation agreements that informs the employee of the employee's right to consult an attorney about the agreement. Such agreements must also make clear that the employee has been provided with "a reasonable time" to consult with an attorney. The statute provides that "a reasonable time" is "not less than five business days."
Employers should review their form agreements to make sure that they comply with SB331's requirements, which apply to agreements entered into on or after January 1, 2022.
COVID-19 Health Department and Health Officer Rules
As we close in on two years of the COVID-19 pandemic, the various workplace rules regarding vaccine and mask mandates, outbreak procedures, and safety protocols continue to evolve.
Effective January 1, 2022, under SB 336, the California Department of Public Health and local health officers are required to publish all statewide and local orders and mandatory guidance relating to COVID-19 on their websites, along with the date of the applicable order or guidance. The California Department of Public Health or local health officer is also required to create an email distribution list to which employers can subscribe. These new rules should make the process for finding out about the latest state and local COVID-19-related orders and guidance more streamlined for employers.
***
As the new year approaches, employers are encouraged to contact one of Venable's experienced California Labor and Employment attorneys with questions regarding changes to employee handbooks, separation agreements, settlement agreements, non-disclosure agreements, and other policies and documents that may be affected by new employment laws.
Note that this article is not an exhaustive list of all of the new legislation in California that may affect California employers. We also encourage employers to contact one of Venable's experienced California Labor and Employment attorneys to discuss additional changes in the law that will go into effect on or after January 1, 2022.