Happy 2023, dear clients. I hope you all had a happy, healthy holiday season, and 2023 brings you more good health, happiness and success. Please find our synopsis of 2023 compliance changes. This is a lengthy read but we’ve tried to call out action steps and use bullets to make it as digestible as possible. Consultants will be proactively reaching out on some of these items but, as always, your consultant is available to answer questions and help you with compliance.
- Mandatory bereavement leave
- Pay Transparency Requirements
- “Designated Person” for California Family Rights Act (CFRA) and CA paid sick leave eligibility
- Significant updates to COVID-19 workplace safety regulations
- Reproductive Health Decisions are Protected
- Employee Rights During an Emergency
- Limits On Tracking Employees’ Digital License Plates
- Workplace Postings
- Relevant court cases from 2022 impacting all employers and cases to watch on the horizon
- Minimum Wages and Salaries – Clarification from Last Newsletter
The following changes to California employment law take effect on January 1, 2023.
Bereavement Leave
Who: Employers with 5+ employees anywhere.
What:
- Provides for five days of protected bereavement leave upon death of family member (spouse, child, parent, sibling, grandparent, grandchild, domestic partner, parent-in-law).
- Eligibility: employed for at least 30 days prior to leave (no hours worked restriction).
- Time can be taken intermittently or consecutively but must be completed within three months of death.
- Unpaid (unless existing policy provides for pay or you choose to pay for the leave), although employee may use accrued paid time off. Exempt employees must be paid in accordance with the Fair Labor Standards Act and California wage and hour law.
- Employers cannot cap how many times an employee can take bereavement leave when a covered family member dies.
- Documentation can be required to verify their need for leave, such as a death notice or published obituary.
- Employers must keep an employee’s use of bereavement leave confidential.
Action Items:
- Add a bereavement leave policy or, if you already have one, ensure it satisfies the new law’s requirements.
- Update your paid sick leave policy to include bereavement for a family member as a covered reason for leave.
Pay Transparency Legal Requirements
WHAT: Employees Can Request Pay Scale information for their position
WHO: Employers of any size
Description of Requirement: California already requires employers (including state and local government employers and the legislature) to provide the pay scale for a position on reasonable request from an employment applicant. Under the new law, employers will have to provide the pay scale for an employee’s current position upon employee request.
WHAT: Record Retention requirements
WHO: Employers of any size
Description of Requirement: To help the Labor Commissioner’s Office detect any a pattern of wage discrepancies, employers will have to maintain records of a job title and wage rate history for each employee for the employment duration, plus three years.
WHAT: Job Postings must include a Pay Scale, even if using a third party like a recruiter or posting site
WHO: Employers with 15+ employees
Description of Requirement: Employers must include the pay scale for a position in any job posting. If using a third party to announce, post, publish or otherwise make known a job posting, employers should provide the pay scale to the third party to include in the job posting.
Penalties. If an employer has violated these requirements, the Labor Commissioner’s Office may impose a civil penalty of up to $10,000 per violation. The penalty amount will reflect the totality of the circumstances such as past violations of these requirements by the employer. For a first failure to provide the pay scale, employers will not be penalized if they demonstrate that all job postings have been updated to include the pay scale.
WHAT: Reporting requirements have become more detailed
WHO: Employers with 100+ employees
Description of Requirement: In addition to the existing information currently required, a detailed report will need to be submitted annually in May, including the median and mean hourly rate within each job category for each combination of race, ethnicity and sex.
If an employer has multiple establishments, it will still have to submit a separate report for each establishment but will not need to submit a consolidated report.
Penalties. On request by the California Civil Rights Department, a court may impose a civil penalty not exceeding $100 per employee for a first failure to file the required report and not exceeding $200 per employee for each subsequent failure.
CFRA and Paid Sick Leave Expanded to Cover A “Designated Person”
Who: Sick Leave: All employers. CFRA: Employers with 5+ employees anywhere.
What: Employees can take leave under the CA paid sick leave law and the California Family Rights Act (CFRA) to care for a designated person. Employees in San Francisco, Berkeley, Oakland and Emeryville have been able to designate a person for sick leave purposes for years so those employers can modify existing “designation” forms to include CFRA and state-wide sick leave.
- “Designated person” for CFRA leave is any individual related by blood or is the equivalent of a family relationship with a serious health condition.
- “Designated person” for sick leave can be anyone.
- A “Designated person” may be identified when leave is requested rather than pre-designated.
- Employees can be limited to one designated person per 12-month period for family care and medical leave.
- City ordinances for “designated person” still apply for SF, Berkeley, Oakland, and Emeryville and the safe approach is to allow local ordinances in addition to designation under CA sick leave law.
Action Items:
- Update your CFRA policy to include caring for a designated person with a serious health condition.
- Update your paid sick leave policy to add that employees can use time to care for a designated person.
- Create (or update) a designation form to include with your new hire packet and to distribute to existing employees.
Major Changes to Cal/Osha Covid-19 Emergency Temporary Standard (ETS)
The Emergency Temporary Standard for Covid safety was set to expire on 12/31/22 so “permanent” standards (still only good for two years) were put into place. They have not been codified by the Secretary of State yet so, until that happens, the old ETS rules are still in place. The new changes favor employers more than the old ones, so that’s something positive, but as usual, it’s a massive list of rules and processes to comply with. This is an abbreviated list:
- Notice Requirements. Employers still must give notice to employees and others in the workplace who may have been exposed to Covid at work within 24 hours of the employer being notified of the exposure. Employers are now allowed to display a notice in lieu of individual notification. The posted notice must contain specific information, be posted within one business day, and stay posted for at least 15 days. If the employer posts other workplace notices on an existing employee portal, the notice can be posted there. The notice must be in English, and the language understood by the majority of employees if not English. At NLS, we prefer a personal letter/email because it has a better chance of being seen.
- Exclusion Pay Is Eliminated! (For now – it may come back.)
- Reporting. The requirement that employers report cases to their local health departments is gone unless required by the local health departments; however, the requirement to report COVID-19 cases to your workers’ compensation carrier extends until January 1, 2024. Major outbreaks must be reported to Cal/OSHA (a new requirement).
- While the permanent regulation will be in effect for two years from the effective date, you must maintain specific records for three years after the effective date.
- Definitions have changed.
- “Close Contacts” now has different standards depending on cubic feet of the work location. The most applicable for NLS clients: For indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is anyone sharing the same indoor airspace for 15 minutes or more over a 24-hour period.
- Asymptomatic close contacts do not need to be excluded if they test negative within three to five days after their last close contact.
- Close contacts with symptoms must be excluded and test as soon as possible. Exclusion must continue until test results are obtained. If the employee is unable to test or chooses not to test, exclusion must continue for 10 days.
- “Infectious Period” (when employees must be excluded from the work site)
- For COVID-19 cases with symptoms, from two days before the onset of symptoms until 10 days have passed (or five days if the employee tests negative on day five or later) and 24 hours have passed without a fever.
- For COVID-19 cases without symptoms, from two days before testing through 10 days (or through day five if the employee tests negative on day five or later).
- “Returned Case” was reduced from 90-days to a 30-day period following the onset of symptoms or a positive test.
- IIPP. ACTION STEP: Update Your IIPP! COVID-19 is considered a workplace hazard and must be addressed in your required Injury and Illness Prevention Program (IIPP). You can incorporate your COVID-19 procedures in the written IIPP or maintain a separate document. The most common Cal/OSHA citation is related to the IIPP, so make sure you update!
- Training. Employees must receive training regarding COVID-19 in accordance with the regular standards for training under IIPP regulations: when the program is first established, to all new employees, or when there is a new hazard.
- Daily Screening Eliminated. The permanent regulation provides that employees should be encouraged to report COVID-19 symptoms and to stay home when ill.
- Recordkeeping Requirements. Employers are required to keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of the positive test or diagnosis, for two years. Employers must also retain records of notices of COVID-19 cases and maintain such records for three years after the effective date of the regulation. Personal identifying information on COVID-19 cases or employees with symptoms (and any employee medical records) must be kept confidential unless CDPH, Cal/OSHA or NIOSH requests it.
- Changes to Outbreak Protocols. Outbreaks and major outbreaks are now collapsed into one section. These requirements include making immediate testing available to employees in the exposed group (and weekly thereafter) during an outbreak and mandating required twice weekly testing during a major outbreak. The requirements apply until there are “one or fewer” new COVID-19 cases detected in the exposed group for a 14-day period.
- Air Quality/Filtration Requirement. Employers are now specifically required to use HEPA filters in indoor areas occupied by employees for extended periods, where ventilation is inadequate to reduce the risk of transmission.
- Face Coverings. Regardless of vaccination status, previous infection, or lack of symptoms, all COVID-19 cases must wear a face covering in the workplace until 10 days have passed since the date symptoms began or the date of their first positive test. This requirement is in play even if city or county ordinance doesn’t require general mask use. Employers must provide respirators (which includes N95 masks) to employees for voluntary use, upon request.
- Testing. Employers are required to make COVID-19 tests available at no cost to all employees who had a close contact in the workplace (with the exception of returned cases).
Reproductive Health Decisions
Who: Employers with 5+ employees anywhere. Religious organizations and nonprofits are exempt.
What: Reproductive health decisions will be added to the list of protected characteristics under California’s antidiscrimination law. Reproductive health decisions include, but aren’t limited to, using or accessing a particular drug, device, product, or medical service for reproductive health.
Employers can’t ask applicants or employees to provide any information about their reproductive health decisions as a condition of employment or to receive employment benefits.
Action Item: Add reproductive health decisions to your equal employment policies.
Employee Rights During Emergency Conditions
Who: All employers
What: Employees are now allowed to leave work or not come in during emergency conditions if they have a reasonable belief that the workplace is unsafe.
- You can require employees to provide notice in advance when feasible or, if advance notice isn’t feasible, as soon as possible.
- Employees are specifically entitled to use their cell phones or other devices to get emergency assistance, communicate with someone to make sure they’re safe, or assess the safety of a situation during an emergency condition.
- “Emergency condition” means either:
- Conditions of disaster or extreme peril to the safety of persons or property caused by natural forces or a criminal act.
- An order to evacuate a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.
- “Emergency condition” does not include a health pandemic.
- Employers cannot :
- Take or threaten to take adverse action against any employee for refusing to report to, or leaving, a worksite because the employee has a reasonable belief that the worksite is unsafe.
- Prevent employees from accessing a mobile device to seek emergency assistance, assess the safety of the situation, or communicate with a person to confirm their safety.
- Exceptions exist for employees in specified jobs such as in residential care facilities.
- Requirements do not apply when emergency conditions have ceased.
Action Items:
- Update your attendance policy to include an exception for advance notice when emergency conditions make notice not feasible.
- Add in a policy for employee rights during emergencies.
Limits On Tracking Employees’ Digital License Plates
A new law that will allow drivers in California to have digital license plates equipped with GPS has a limitation that could affect employers. Employers will be allowed to use a vehicle’s digital license plate to electronically track employees only during work hours and only if “strictly necessary” to perform their job duties. Employers that use tracking devices on employees’ vehicles must provide advance notice, which needs to include quite a few details. If you plan to use GPS to track employees, please reach out to your attorney or NLS to ensure compliance.
Workplace Postings for Remote Workers
- When employers are required to physically post information, they may also distribute that information to employees by email and attach the document(s).
- Where an employer has both on-site and remote employees, federal DOL requires both physical and electronic postings.
- Electronic postings: Could reside on an intranet, website, shared drive network, or file system posting.
- Employer must inform employees how to access notices electronically so they can “readily see” them.
Case Law During 2022 Which Might Affect Your Business
- Time Rounding – Home Depot Case
- Recommendation: Due to advances in technology where the exact amount of work can be tracked by almost every employer, companies that currently round work time should reexamine this practice.
- Paying for All Time Worked – Connexx Case. Connexx did not pay employees for time spent booting up/logging in and shutting down/logging out of computer or time to clock in.
- Recommendation: Examine employee time to ensure they are paid for all hours worked, defined as “the time during which an employee is subject to the control of an employer.”
Minimum Wages and Salaries – Clarification From Last Newsletter
In case you’re wondering why San Francisco, Emeryville, Berkeley, and Alameda were left off the minimum wage changes list, it’s because nothing has changed. Those cities have changes effective on July 1 each year. The rest of the list has a January 1 effective date.
Handbook Updates
The updates arrived back from the attorney this week. Our next step is to create a “cheat sheet” type document for clients who want to do the updates themselves and then we price the updates and roll them out. Keep an eye out from an email from us with pricing and timing in the next week or two.
WORKSHOPS
Recruiting and Hiring in 2023 – Wrangling the Beast!: Tuesday, February 28, from 2:00 p.m. – 4:30 p.m
The Great Resignation, Great Renegotiation, Big Quit, or whatever we want to call it, has resulted in 58 unemployed people for every 100 jobs. Employers are scrambling to find and retain talent across most industries with hospitality, health care and education in the worst shape. As a result, many of you may be settling for mediocre employees. We want to help you attract and retain great people! In this workshop, we will discuss ways to improve the candidate experience, how to properly identify your needs, write an effective posting, ask the right interview questions, hire without spending a ton of money, look at internal processes that are slowing you down, and how to make your onboarding process “sticky” for new employees. We are going to share as many tips and tricks as time will allows to ensure that you leave the workshop with some new ideas you can apply right now to your hiring needs.
Performance, Discipline & Termination: Thursday, March 2, from 2:00 p.m. – 4:30 p.m.
Clients requested we create a training to assist in employee performance management and the termination process. Topics include: goal setting, how and when to do reviews, performance coaching, performance feedback, corrective performance strategies, conflict resolution, and proper termination techniques.
HR 101: Tuesday, March 7, from 10:00 a.m. – 12:30 p.m.
This is a great training for new managers and overwhelmed entrepreneurs. Topics include: new for 2023 updates, multi-state employment, Covid/safety requirements, paperwork requirements, tip laws, defining exempt and non-exempt employees, independent contractors and exempt/non-exempt classification, a variety of wage and hour issues such as meal and rest breaks, leaves of absence, local ordinances, harassment prevention information, final check and termination requirements, and much more!
All workshops are live webinars using the Zoom app.
$139 per session, $250 for two sessions, or $300 for three sessions, including materials.
RSVP to Gene Hacker, 415.876.NEXT or gene@nextlevelstrategies.net to reserve your space. We limit the number of attendees to allow for plenty of questions.
