Work

on the

Wild Side

written by
Margaret Grover

The pandemic influenced many of the new
employment laws and regulations written in 2020.

Laws designed to benefit employees suffering from COVID-19 or needing time off because of the pandemic were a key focus of employment laws and regulations enacted in 2020. Many of these laws are of relatively short duration, although they may be extended if the pandemic continues. Other laws, which will have longer-term impact on California employers, are highlighted first in this article.

Small Employers Required to Provide CFRA Leave
Employers with five or more employees are now obligated to provide unpaid time off under the California Family Rights Act (CFRA). The CFRA grants up to 12 weeks of unpaid protected leave during any 12-month period when the employee needs the time for a variety of reasons: for their own illness or injury; to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner; to bond with a new child; or for a qualifying exigency related to active duty or the employee’s family member. Although the leave is unpaid, the employer must keep any group medical insurance in place, subject to the same terms as existed before the leave began.

An individual who has worked for the employer for at least 12 months, which may include time prior to a break in service, and who has worked at least 1,250 hours for the employer during the 12 months immediately before the beginning of the leave, is entitled to the protected time off. This leave must be provided in addition to any pregnancy disability leave to which the employee is entitled. Combining the two types of leave, a woman who has a difficult pregnancy could have approximately seven months of protected time off associated with the birth of her child and newborn bonding or care.

Employers are required to give employees notice of the right to this protected time off. Employers should promptly review their handbooks, policies, and posters to be sure that they are complying with the notice requirements. Employers who have not previously been required to provide CFRA leave should consult with knowledgeable employment counsel about any employee request for extended time off. The law is difficult to apply and, if not followed, contains a variety of traps for the unwary.

Expanded Crime Victim Protection
The existing law providing time off and other protections for employees who are victims of domestic violence, sexual assault, or stalking has been expanded to provide the same protections for victims of crime or abuse. Victims of crime or abuse are now entitled to take time off to obtain medical attention, counseling, legal relief, or to ensure the health, safety, or welfare of the employee or the employee’s child. Employee handbooks that discuss domestic violence leave should be updated to reflect the new protections.

Wage Retaliation Law
Employees who allege a claim that they have experienced retaliation because they complained about unlawful wages may now bring those claims within one year of the retaliation. Previously, employees were required to file these types of a claims with the Labor Commissioner within six months. In addition, employees are now eligible to recover attorneys’ fees if they prevail on a wage retaliation claim.

Wage Claim Enforcement in Arbitration
Under existing law, if an employee recovers wages in a hearing before the California Labor Commissioner’s office, and the employer appeals, the Labor Commissioner will provide an attorney to represent the employee in Superior Court if the employee is not able to afford counsel. This right has now been extended to arbitrations. The employee’s right to representation in arbitration extends to claims initially brought in arbitration or when the claim was filed in the superior court and the employer moves to compel arbitration. If the employee cannot afford counsel, the Labor Commissioner's office is now authorized to oppose the employer’s petition to compel arbitration.

This change may not impact wage litigation significantly. Most employees with wage claims can afford counsel, as the claims carry a right to recover attorneys’ fees and employee-side lawyers are often willing to accept the claims under a contingency fee agreement. However, the Labor Commissioner’s office is not required to assess the validity of the claim in arbitration or superior court and may represent employees on claims of questionable value that a contingency fee attorney has declined.

Limited Exception to ABC Test
In the last few years, California law changed so that almost every worker was presumed to be an employee, rather than an independent contractor. A handful of industries pushed back, resulting in limited and very specific exemptions for consulting, youth sports coaching, interpreters, and wedding services, which must operate as referral services; music industry and performers; and certain professional services.

Pay Data Report
The California Department of Fair Employment and Housing will collect workplace census information, including information about the race, ethnicity, and sex of employees. Employers with 100 or more employees must submit a Pay Data Report that identifies employee work classifications, including executives, managers, professionals, laborers, and service workers and the racial, ethnic, and gender breakdown of each worker class. The first Pay Data Report is due no later than March 31, 2021. Thereafter, employers must submit annual Pay Data Reports.

COVID-19 Leave Laws
The first law designed to reduce the impact of the COVID-19 pandemic was the federal Families First Coronavirus Response Act (FFCRA), which required smaller employers to provide protected time off to employees suffering from COVID-19, required to quarantine because of possible exposure to COVID-19, or needing to care for children whose school or childcare was closed due to the pandemic. At the time this article was written, the FFCRA leave requirements were set to expire on December 31, 2020. California adopted a statute mandating that large employers provide the same protected time off. The California leave requirement is also set to expire on December 31, 2020, but will be extended if the federal FFCRA leave rights are extended. While it seems likely that these leaves will be extended, as of the time this article was written, there was no information explaining the possible new leave. The extension may simply extend the time within which employees can use FFCRA leave, or it may provide additional protected time off. Any employer faced with a request for time off related to COVID-19 should consult with a knowledgeable employment attorney before responding to the request.

COVID-19 Issues in Workers’ Compensation
Employees who are diagnosed with 

COVID-19 within 14 days of being at work are entitled to a disputable presumption that the disease arose out of and in the course of the employment and is, therefore, compensable through Workers’ Compensation. The presumption is limited under certain circumstances. Employers should be aware that they have a shorter time to challenge COVID-19-related claims for Workers’ Compensation benefits than is available for other Workers’ Compensation claims. Any challenges must be submitted within either 30 or 45 days, depending on the nature of the workplace.

Employees are required to exhaust their paid sick leave benefits and meet specified certification requirements before receiving any temporary disability benefits.

COVID-19 as an Occupational Safety Issue
New provisions of the California Occupational Safety And Health Act (CalOSHA) require employers who learn that employees may have been exposed to COVID-19 in the workplace to notify their employees of the potential exposure. The employer must give notice to its employees as well as to the employers of subcontracted employees who were on premises when the potential exposure occurred. The employer must provide the notice within 24 hours after learning of a potential exposure. The notice must discuss both the potential exposure and the employer’s disinfection and safety plans.

Margaret Grover has worked with California employers, helping them to understand the complex state and federal laws governing the employment relationship, for more than 30 years. She also conducts neutral investigations and mediates employment-related claims. She can be reached at [email protected] or 415-596-9433.