2023 California Employment Law Updates to Add to Your Employee Handbook and Policies

The new year comes with several changes in employment law that should be taken into account for the protection of your business and your employees. The new laws cover a wide range of areas in employment, including hiring, leaves of absences, drug abuse policies, and privacy. We’ve set out a brief overview of five notable laws for your reference.

Senate Bill 1044 – No Retaliation Against Employees for Refusal to Report to Work During Emergency Conditions

Effective January 1, 2023, SB 1044 prohibits an employer, in the event of an “emergency condition”, from taking or threatening adverse action against any employee for refusing to report to or leave a workplace or worksite within the affected areas. Emergency conditions include conditions of disaster or extreme peril to the safety of persons or property caused by natural forces or a criminal act, or an order to evacuate a workplace, worksite, or employee’s home, or the school of an employee’s child due to a natural disaster or a criminal act. If an employee has a reasonable belief that the workplace or worksite is unsafe due to an emergency condition, they may refuse to report to or may leave work. However, when the emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worksite, the employee, or the employee’s home have ceased, these provisions of the law are no longer intended to apply. This law also prohibits an employer from preventing any employee from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. Notably, an emergency condition does not include a health pandemic.

Assembly Bill 1949 – Employee’s Bereavement Leave

Effective January 1, 2023, AB 1949 makes it unlawful for an employer with 5 or more employees to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave upon the death of a “family member”. Although the employee must complete bereavement leave within 3 months of the family member’s death, the employer may not require that the 5 days be used consecutively. Statutory bereavement leave is unpaid, but the employee may use vacation or sick leave for bereavement leave to offset lost wages. Additionally, an employer cannot discriminate, interfere, or retaliate against an employee’s exercise of bereavement leave, and must maintain confidentiality related to an employee’s bereavement leave. It is important that employers update their sick leave policy to include bereavement leave as a reason to use sick leave benefits.

Senate Bill 523 – Contraceptive Equity Act of 2022

Effective January 1, 2023, SB 523 amends the Fair Employment and Housing Act (FEHA) to prohibit against the discrimination of an employee or applicant based on their “reproductive health decision-making.” This includes a decision to use or access a particular drug, device, product, or medical service for reproductive health. It is important that employee handbooks are updated with this terminology to ensure employees are informed of their employer’s policy against harassment and discrimination. SB 523 also expands required health plan coverage for contraceptives; however, this portion of the law would not become effective until January 1, 2024.

Assembly Bill 1041 – Employees Leave to Care for a “Designated Person”

Effective January 1, 2023, state family and paid sick leave will be expanded to allow employees to take protected time off to care for a “designated person.”  AB 1041 adds a “designated person” to the list of persons eligible employees may take job-protected leave to care for under the California Family Rights Act (CFRA). A designated person is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” An individual who may be considered “the equivalent of a family relationship” is not defined at this time.

Additionally, AB 1041 adds a “designated person” to the list of family members an employee may take time off to care for under California’s Paid Sick Leave law. A “designated person” under California’s Paid Sick Leave law, is defined as “a person identified by the employee at the time the employee requests paid sick days.” However, this definition does not require that the person be related by blood or be “the equivalent of a family relationship.”

Employers are permitted to limit an employee to one designated person per 12-month period in either case. Therefore, employers will need to adjust their policies and protocols for both the CFRA and Paid Sick Leave in California to include “designated person.”

Senate Bill 1162 – Pay Transparency for Pay Equity Act

Effective January 1, 2023, SB 1162 expands the employer requirements for employee pay data reporting. Private employers with 100 or more employees must submit pay data reports to the California Civil Rights Department (CRD), regardless of whether they are required to submit EEO-1 reports to the Equal Employment Opportunity Commission (EEOC). SB 1162 also expands the number of data categories those employers are obligated to report. Among other things, employers with more than 100 employees are required to share the median and mean hourly rate by each combination of race, ethnicity, and sex. Employers with more than 15 employees are required to include a pay scale in all job postings. All employers, regardless of the number of employees, are required to provide pay scale for a job applicant or a current employee’s position upon request. All employers are also required to maintain a record of job titles and wage history during each employee’s employment and for three years after termination.

We advise clients to contact legal counsel and have their employment policies and practices reviewed to ensure compliance with these new laws, as well as others that will go into effect in the new year.

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This post is for informational purposes only, and merely recites the general rules of the road. Lots of legal rules have exceptions, however, and every case is unique. Never rely solely on a blog post in evaluating your situation — always contact an attorney when your legal rights and obligations are on the line.