With the new year comes new laws and, for employees in California, new benefits and protections. Below are four of them all employers should be aware of, as existing policies and practices may need to be updated. Unless otherwise noted, all laws discussed took effect on January 1, 2023.
Bereavement Leave (AB 1949)
For the first time ever, California now provides protected time off for employees who experience a death in their family. Specifically, employers are now required to provide employees with up to five days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandchild, domestic partner, or parent-in-law. The law prohibits employers from requiring bereavement leave to be taken consecutively. However, employers may require bereavement leave to be taken within three months of the family member's death. Employers may also require verification of the need for bereavement leave. In addition, AB 1949 prohibits employers from discriminating or retaliating against an employee in response to or otherwise interfering with the employee's use of bereavement leave.
Pay Transparency Law (SB 1162)
California employees are now required to disclose pay scales for positions published in job postings. The new law applies to employers with 15 or more employees (including part-time employees), and affirmatively requires such covered employers to (a) include in all job postings, including those posted by third-party recruiters engaged by the employer, the salary or hourly wage scale that the employer reasonably expects to pay for the position; (b) provide current employees, upon request, with the pay scale for the position in which the employee is currently employed; and (c) maintain records of the job title and wage rate history for each employee.
Paid Sick Leave and Medical Leave to Care for a Designated Person
AB 1041 expanded on the categories of individuals for whom an employee may take leave to care for under California's Family Rights Act (CFRA) and California's Paid Sick Leave (PSL) law. These laws now permit eligible employees to take leave to care for a "designated person." Confusingly, however, the definition of "designated person" varies slightly under the two laws.
CFRA, which applies to employees with five or more employees, provides up to 12 weeks of unpaid protected leave per year for the birth/placement/adoption of a child, to use for their own serious health condition, or to care for a family member with a serious health condition. AB 1041 expanded the permitted use of CFRA leave, to allow employees to care for a "designated person," defined as any individual related by blood or whose association with the employee is equivalent to a family relationship. Employees are permitted to identify the designated person at the time of the request for leave.
California's PSL law provides paid sick leave to employees who work in California for at least 30 days within a calendar year. Such PSL may be used for the diagnosis, care, or treatment of an existing health condition, or preventative care for themselves or for a family member. AB 1041 expanded the permitted use of PSL to allow employees to take leave to care for a "designated person," which is defined broadly to include any individual the employee identifies at the time the employee requests PSL. There is no requirement that the designated person be a blood relative or akin to a family member, as is required under the CFRA.
Both under CFRA and for PSL, employers are permitted to limit employees to one designated person per 12-month period.
Updates to California's Fair Employment and Housing Act
SB 523 has amended California's Fair Employment and Housing Act (FEHA) to include "reproductive health decision-making" in the list of classifications protected by FEHA. FEHA now defines "reproductive health decision-making" as including, "but not limited to, a decision to use or access a particular drug, device, product, or medical service for reproductive health." This is likely to include medications, vasectomies, or in-vitro fertilization. This addition to FEHA now prohibits discrimination, retaliation, harassment, and retaliation based on an employee's reproductive health decision-making. In addition to such prohibitions, an employer may not require employees or applicants to disclose information relating to their reproductive health decision-making as a condition of employment.
California will also implement new protections for off-duty cannabis use, effective January 1, 2024. Specifically, AB 2188 will amend FEHA to prohibit discrimination on the basis of off-duty use of cannabis or for failing an employer-mandated drug test screening for having "non-psychoactive cannabis metabolites in their hair, blood, urine, or body fluids." After January 1, 2024, if an employer wants to punish an employee for marijuana-related conduct, it must show that the employee was either in possession of or under the influence of marijuana while in the workplace.
What Employers Should Do Next
California employers should evaluate their current policies and practices to ensure compliance with these new laws. To ensure compliance, next steps should include the following:
- Review and update employee handbooks or stand-alone policies to ensure compliance
- Train and educate management on these new laws
- Advise and oversee any new job postings to ensure they include the applicable pay scale
- Consider partnering with outside counsel for a policy and practice compliance review