Every year starts with a flurry of new laws and regulations that California employers have to contend with.
And 2022 is no different as the California legislature had a busy year and the stresses of the COVID-19 pandemic resulted in more activity. The end result is another round of new laws that employers need to stay on top of so they don’t run afoul of them.
With no further ado, here are the top regulations and laws affecting California businesses.
- Big change to Cal/OSHA citations
A new law adds two new Cal/OSHA violation categories that carry penalties of up to $124,709 per violation — the same as for “repeated” or “willful” citations currently.
SB 606 adds “enterprise-wide” and “egregious” violations to the mix, giving Cal/OSHA broader leeway to cite employers it finds are flagrantly violating California’s workplace safety regulations.
The law creates a rebuttable presumption that an employer with multiple worksites has committed an enterprise-wide violation if:
- It is found to have a written policy or procedure that violates Cal/OSHA regulations, or
- The agency has evidence of a pattern or practice of it skirting the rules at one or more of its locations.
If the employer is unable to rebut this presumption, Cal/OSHA can issue an enterprise-wide citation that would require abating the violation at all locations. And the employer can face a maximum penalty of $124,709 per violation.
SB 606 also authorizes Cal/OSHA to issue a citation for an egregious violation if it believes that an employer has willfully and egregiously violated an occupational safety or health standard, order, special order or regulation.
The reason this could get expensive for an entity hit with egregious violations is that each instance of employee exposure to that violation will be considered a separate violation.
- Permanent COVID standard
On Sept. 17, 2021, Cal/OSHA released a draft text for proposed permanent COVID-19 regulations, which if adopted would be subject to renewal or expiration after two years and would replace the current emergency temporary standard, which is still in place.
An effective date has not yet been announced, but it’s expected to be in place before April 20, which is when the emergency temporary standard expires. Due the ever-changing nature of the coronavirus, the rules the agency has proposed for a permanent standard are likely to change, particularly in light of the Omicron variant surge.
Here’s some of what the draft standard would do:
- CDPH rules — Employers must immediately exclude from the workplace all COVID-19 cases for the isolation period required by the California Department of Public Health. COVID-19 cases who tested positive but never developed COVID-19 symptoms shall not return to work until a minimum of 10 days have passed since the date of their first positive test.
- Testing — Employers must make COVID-19 tests available at no cost, during paid time, to all employees of the employer who had a close contact in the workplace
- Masks — Employers must provide masks when the CDPH requires them.
- Outbreak rules — If three or more employees test positive in the workplace, outbreak rules are triggered, requiring the employer to make COVID-19 tests available at no cost to its employees within the exposed group, during employees’ paid time.
Also, under new rules Cal/OSHA issued in January 2022:
- If an employee tests positive for COVID-19 they must stay home for at least five days. Isolation can end after day five if symptoms are not present or are resolving and after a negative test after day five.
- Employees who are not vaccinated or those who have been vaccinated but haven’t received a booster dose and who are exposed to someone with COVID-19 must quarantine for five days. They can test on day five and quarantine can end after day five if symptoms are not present and they test negative.
- Employees who are vaccinated and boosted do not have to quarantine if they are exposed to someone with COVID-19.
- COVID exposure notification
On Oct. 5, 2021, AB 654 took effect, updating requirements for what an employer must do if there is an outbreak of COVID-19 cases at its worksites.
This law somewhat curtails earlier outbreak-reporting requirements as well as other required notifications for certain employers, and updates several provisions of the 2020 outbreak notification law, AB 685.
That law required the provision of written notice to all employees, and to the employers of subcontracted employees, “who were on the premises at the same worksite as” an employee who tests positive for COVID-19, among other reporting requirements.
The new law clarifies that:
- Employers have one business day or 48 hours, whichever is later, to report a workplace COVID-19 outbreak to Cal/OSHA and local health authorities.
- Employers do not need to issue these notices on weekends and holidays.
- When an employer has multiple worksites, it only needs to notify employees who work at the same worksite as an employee who tests positive for coronavirus.
- The new definition of “worksites” for the purposes of the law has been changed to exclude telework.
- Expansion of the California Family Rights Act
AB 1033 expands the CFRA to allow employees to take family and medical leave to care for a parent-in-law with a serious health condition.
More importantly, it adds a requirement that mediation is a prerequisite if a small employer (one with between five and 19 workers) is the subject of a civil complaint filed by one of its employees. The goal is to help small firms head off costly civil litigation by allowing them to first choose mediation.
- Workplace settlement agreements and NDCs
A new law took effect Jan. 1 that broadly prohibits employers from requiring non-disclosure clauses in settlement agreements involving any workplace harassment or discrimination claims. This builds on prior law that barred NDCs only in cases of sex discrimination or sexual harassment.
The new law expands that prohibition to all protected classes, such as:
- National origin,
- Age, and
- Sexual orientation.
One important note: While employees can’t be prohibited from discussing the facts of the case, employers can still use clauses that prohibit the disclosure of the amount paid to settle a claim. This is aimed at preventing other employees from “piggybacking” off a settlement with the aim of seeking a similar payout.
Also, employers can still include non-disparagement clauses or similar provisions in agreements, as long as they also include specific language stating the employee’s right to discuss the facts of the case.
The law applies to agreements entered into on or after Jan. 1, 2022.
- New minimum wage
Effective Jan. 1 employers will have to start paying their employees a higher minimum wage. The minimum wage for workers at operations with 25 or fewer employees bumped up to $14 an hour, while it jumped to $15 an hour for workers at firms with 26 or more employees.
The increases are part of a state law that has steadily hiked the minimum wage since Jan. 1, 2017, when it was around $10.
Please note that many jurisdictions in the state have minimum wages that are higher than the state minimum age, including San Francisco at $16.32 an hour, $16.45 an hour in Palo Alto and Emeryville at $17.13.
- Wage theft penalties
AB 1003, which took effect Jan. 1, adds a new penalty to the California Penal Code: Grand Theft of Wages. The new law makes an employer’s intentional theft of wages (including tips) of more than $950 from one employee, or $2,350 for two or more workers, punishable as a grand theft.
The law, which also applies to wage theft from independent contractors. allows for recovery of wages through a civil action.
As a result, employers (and potentially managers and business owners) would be exposed to both criminal and civil liability for wage and hour violations like failing to pay staff accurately and in a timely manner.
Review your compensation policies and practices to make sure you are in compliance with current wage and hour laws.
- COVID cases may be included in X-Mods
The Workers’ Compensation Insurance Rating Bureau of California has proposed plans to start requiring COVID-19 claims to be included when calculating employers’ X-Mods.
The proposal, which would have to be approved by the state insurance commissioner, would bring to an end current rules that exclude the impact of COVID-19 workers’ compensation claims on X-Mods.
If approved, the new rule which would take effect on Sept. 1, 2022. That means that employers will be held accountable for COVID-19-related workers’ compensation claims and, if any employee needs treatment or dies from the coronavirus, it could result in higher premiums in the future.
- Notices can be e-mailed
A new state law authorizes California employers to distribute required posters and notices to employees via e-mail. SB 657 adds e-mail as a delivery option to the list of acceptable notification methods, which also includes mail.
Federal postings and some California notices (among them: FEHA and EDD) are not covered in this law. While SB 657 allows some CA notices required by California Labor Code to be emailed employers should consult with their HR experts to determine which postings will still need to be provided in hard copy to remote workers.
Required posters and notices will still need to be physically posted in the workplace.
- Warehouse quota rules
A new law that took effect Jan. 1, 2022 makes California the first state to regulate quotas used by warehouse employers.
While the bill was written with Amazon Inc. in mind, it affects all warehouses with 100 or more workers, and violations of the new law can be costly for an employer.
Under AB 701, warehouse employees must be provided with a written description of the quotas to which they are subject within 30 days of hire. Common quotas include the number of tasks the employee is required to perform, the materials to be produced or handled, and any adverse employment action that may result from a failure to meet the quota.
While employers may still implement quotas, employees are not required to meet a quota if it:
- Prevents them from taking required meal or rest periods,
- Prevents them from using the bathroom (including the time it takes to walk to and from the toilet), or
- Contravenes occupational health and safety laws.
The law also bars employers from discriminating, retaliating or taking other adverse action against an employee who:
- Initiates a request for information about a quota or personal work-speed data, or
- Files a complaint alleging a quota violated the Labor Code.