» Year-End Update for Employers on New 2023 Workplace Regulations
November 28, 2022
California has enacted a number of new laws on employers and how they run their workplaces. Most of those listed below take effect on January 1, 2023. This list is by no means exhaustive, so check with your labor counsel for a full perspective on the ramifications for your business.
If you have questions for the Acrisure Compliance Solutions team, a complimentary resource for our clients, let’s talk today.
Pay Transparency in Job Postings
Employers with 15+ employees must post a pay scale in any job posting for a position that may be performed in CA, including remote positions. And employers with under 15 employees aren’t fully exempt; they are required to provide a pay scale if requested.
Pay Scale means the range of salary or hourly wage that’s reasonable for that position.
Expansion of Requirements around Annual Pay Data Reporting
Continuing the trend around pay transparency, CA also expanded the requirements on employers for reporting of annual pay data.
Employers with 100 or more employees must submit annual pay data to the California Civil Rights Department. Amendments to the law have pushed the submission deadline to the 2nd Wednesday of May beginning in 2023. For future years, the deadline is on or before the 2nd Wednesday of May.
This law also addresses employers with 100 or more employees hired through labor contractors. Those employers must submit a separate pay data report to the CRD for the employees hired through labor contractors. Additionally, employers with multiple establishments have to submit a report for each establishment separately and cannot submit one consolidated report.
What do these pay data reports have to include?
- The number of employees by race, ethnicity, and sex in each of the ten specified job categories
- The number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the designated pay bands, and
- New requirement: The median and mean hourly rate within each job category for each combination of race, ethnicity, and sex.
Leave for Care of “Designated Persons”
Employees now have a right to job-protected leave under the California Family Rights Act (CFRA) to care for a “designated person” with a serious medical condition. And CA’s paid leave law, the Healthy Workplaces, Healthy Families Act was expanded to allow employees to use paid sick leave for absences for otherwise qualified reasons related to any illness for that designated person.
A Designated Person is a person related by blood or whose association with the employee is equivalent to a family relationship. Employees may identify this person at the time they request leave, so they don’t have to do so ahead of time, but they are limited to one designated person per 12-month period.
Mandatory Bereavement Leave
CA employers with 5 or more employees will be required to give up to 5 days of bereavement leave to employees who have been employed for 30 days or more in the event of a death of a family member.
The list of family members includes spouse, domestic partner, child, parent, parent-in-law, sibling, grandparent, and grandchildren. If there is no existing company policy, bereavement leave may be unpaid, but employees may elect to use accrued and available paid sick leave, vacation, or another form of PTO during the absence.
While the leave doesn’t have to be taken consecutively, employers will be allowed to require that it be completed within 3 months of the respective death, and employers will be allowed to request documentation to certify the need for leave.
Employee Protections for Reproductive Health Decisions
CA is one of many states to pass new reproductive rights legislation in response to the Dobbs decision in 2022.
California’s law amends the Fair Employment and Housing Act by including “individual’s reproductive health decision-making” or a person’s decision to use a particular drug, device, product, or medical service for reproductive health as a new protected class, and explicitly prohibits discrimination on that basis.
Beyond that, the law also prohibits employers from requiring applicants to disclose their own reproductive health decisions as a condition of employment or receiving employment benefits.
Employee Off-Duty Cannabis Use
Starting in 2024, employers can’t take adverse action or discriminate against employees due to personal cannabis use away from the job during non-working hours, including refusing to hire them.
Employers also cannot screen for or rely on a pre-employment drug test that shows a history of cannabis use to revoke a conditional offer of employment. But employers can use drug tests to measure current impairment and identify THC in an employee’s bodily fluids when making employment decisions.
The key thing here is about protecting personal use while off work – employers can still maintain a drug- and alcohol-free workplace that prohibits employees from possessing, using, or being under the influence of cannabis while on the job.
Notably, this law does not apply to employees in the building and construction trades, nor to applicants or employees in positions that are subject to a federal background check or testing laws.
San Francisco Paid Health Emergency Leave
This one actually took effect this year on October 1st, 2022. San Francisco employers must provide paid leave to employees for “public health emergencies” under a new Public Health Emergency Leave Ordinance (PHEL).
Private employers with 100 or more employees anywhere in the world are now required to provide all employees performing work within the City and County of San Francisco with paid leave during a public health emergency if the employee is unable to work or telework due to any of the following:
- Recommendations or requirements of any individual or general federal, state, or local health order related to the public health emergency, or the employee caring for a family member subject to such an order
- The employee or family member to whom they are caring has been advised by a healthcare provider to isolate or quarantine.
- The employee or a family member to whom they are caring is experiencing symptoms of and seeking a medical diagnosis or has received a positive medical diagnosis, for a possible infectious, contagious, or communicable disease associated with the public health emergency.
- The employee is caring for a family member and the school or place of care of the family member has been closed or is unavailable due to the public health emergency.
- There is an air quality emergency, and the employee is a member of a vulnerable population and primarily works outdoors.
Each year, employees are entitled up to 80 hours of paid time off for any under PHEL. Employees may use their full PHEL allotment immediately upon hire but it does not carry over from one year to the next.
Employers may offset it in 2022 agsinst leave under CA COVID-19 supplemental paid sick leave, which was extended through December 31st 2022. Starting in 2023 and beyond, employers may reduce the PHEL amount if any federal, state, or local jurisdiction has a similar law in place to provide paid leave or time off for a public health threat.
Given the already complex interplay of laws affecting CA employers, we strongly recommend that employers review their policies and documents with qualified legal counsel.
As part of Acrisure, we have access to Acrisure Compliance Solutions, a team of highly qualified attorneys who can provide insight into laws and situations for our clients. Schedule time with our consultants today to receive guidance on your situation for your company.
Posted by John Hansbrough in Compliance, Legislation, News