Seyfarth Synopsis: Every year California enacts a host of new laws that mean even the most diligent employers need to give their handbooks and policies a review and make sure they are up to date with the latest developments. Seyfarth has a few tips for making sure your handbook in the New Year stays compliant all year long (or at least until California complicates things again!).
It’s late-December, so as you make your New Year’s resolutions for 2023, updating your company’s handbook to comply with new California laws should be at the top of your list!
Although there’s no right or wrong time to do a handbook and policy update, we recommend doing them annually, as California law continually changes. Close to the start of a new year is a great time to do a check-in, because new laws typically become effective on January 1. So let’s get you rockin’ into New Year’s Eve with a game plan for your updates for 2023!
As we addressed in our legislative update this past fall in detail, here are the new laws coming into effect for 2023 (unless otherwise noted) requiring updates to employee handbooks:
Changes to CFRA, Leave, and Sick Policies to Include A “Designated Person”
The California Family Rights Act (“CFRA”) and the California Paid Sick Leave Law (“PSL”) will now cover a “designated person” for whom an employee may take leave, in addition to the family members covered within their scope under AB 1041.
As we blogged about in detail previously, a designated person under the CFRA is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship, and includes domestic partners. The definition of a designated person under the new PSL provisions is different and broader—it can be any person identified by the employee. An employee can identify their designated person at the time they request leave or request to use PSL.
Under both the CFRA and PSL revisions, an employer may limit an employee to naming one designated person per 12-month period. And, under the CFRA, an employer may require the employee substitute any of the employee’s accrued vacation leave or other accrued time off during a leave period, or any other paid or unpaid time off negotiated with the employer.
Employers should make sure their leave policies, sick time policies, associated leave request forms, and handbooks are updated accordingly.
Bereavement Leave Policy Updates
Starting in 2023, the CFRA requires an employer to allow employees to take up to 5 days of bereavement leave upon the death of a family member, provided the employee has at least 30 days of active service. Family member is defined as spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law—more narrowly than the definitions used for CFRA leave generally or PSL, as noted above.
The days of bereavement leave do not be taken consecutively, but an employer can require that the leave be completed within three months of the death of the family member. If the employer does not have a paid bereavement policy, the leave may be unpaid, except that an employee must be allowed to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee. The law does not have any limit on how many times it may be utilized in one year, in the event the employee has multiple covered family members pass away.
The law allows the employer to require documentation of the death of the family member, which can be a death certificate or a published obituary (among other broad types of verification), and prohibits retaliation for requesting bereavement leave.
Employers should revise their bereavement leave policies (if they have written policies) and handbooks to comply with these changes, especially to ensure they are offering at least the minimum number of required days.
Changes to Attendance and Mobile Device Use Policies Where There Are Emergency Conditions
Under SB 1044, in the event of an emergency condition, employers may not take or threaten adverse action against an employee for refusing to report or leaving a workplace because they feel unsafe. In addition, an employee may not be prevented from using their mobile devices for emergency purposes.
It’s important to note that a health pandemic is not considered an “emergency condition,” under this new law. It does include: (1) conditions of disaster or extreme peril to the safety of persons or property at the workplace caused by natural forces or a criminal act, or (2) an order to evacuate a workplace, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. The law was designed essentially to allow for employee protections related to wildfires and school shootings, though it is drafted much more broadly than that.
This law requires employees, where feasible, to notify the employer of the emergency condition. The law does not apply to first responders, disaster service workers, employees on military bases, and employees of residential care facilities, among others.
The prohibition on taking or threatening adverse action against an employee for refusing to report to or leave a workplace because they feel unsafe may require employers to update their attendance policies, potentially making modifications related to discipline for employees who call out or leave a shift early. Also, the prohibition on preventing an employee from accessing their mobile device for emergency purposes may require employers to revise their mobile device policy, particularly in certain industries that may prevent employees from accessing mobile devices at all times during an ongoing shift.
Reproductive Health Now Should Be Included In Anti-Discrimination Policies
The Contraceptive Equity Act of 2022 amends the Fair Employment & Housing Act (“FEHA”) to include reproductive health decisionmaking as a protected class, making it unlawful to harass, discriminate, or retaliate against individuals on that basis. Reproductive health decisionmaking, includes, but is not limited to, an individual’s decision to use or access a particular drug, device, product, or medical service for reproductive health. The law specifically calls out usage of birth control, contraceptives, and voluntary sterilization services as needing to be protected choices.
Employers should review their handbooks and policies, and update their anti-harassment, anti-discrimination, and anti-retaliation prevention policies to reflect the new protected class “reproductive health decisionmaking” under the FEHA. Employers should also consider updating training materials in 2023 to reflect the new protected class and include interactive examples, as they currently do with other protected categories.
Minimum Wage Increase Means Double Check Employee Wages and Exempt Employee Status
The California minimum wage will increase to $15.50 per hour for all employers in the new year.
This increase in the minimum wage affects means you may have non-exempt employees that need raises, and it may create upstream affects that your company will want to consider giving raises to lower level managers as well.
Also significant for employers, with the rise in minimum wage, the minimum annual salary requirement for overtime exempt employees also goes up. California law requires that employees subject to the administrative, professional, or executive exemptions receive a salary that is at least two times the state minimum wage. Because of the increase to the state minimum wage, effective January 1, 2023, the minimum annual salary for employees under these exemptions will also increase to $64,480.
Note that select California cities in the greater Bay Area, Silicon Valley, San Diego, West Hollywood, and others will raise the minimum wage for non-exempt employees working within city limits. Non-exempt employees working within one of these cities must be paid the local minimum wage when greater than the California state minimum wage.
Employers should check to make sure that they have up-to-date minimum wage posters in their breakrooms, and should check with payroll to make sure that all employees are making the correct minimum wage in the new year, and that exempt employees are making at least the statutory minimum.
Don’t Forget About San Francisco’s Public Health Emergency Leave Ordinance
This year, San Francisco voters passed Proposition G, a new Public Health Emergency Leave Ordinance (PHELO), which became operative on October 1, 2022. As we previously blogged about in detail, San Francisco employers with 100 or more employees worldwide, must provide up to 80 hours of paid Public Health Emergency Leave to each employee who performs work in San Francisco. This is in addition to any paid time off, including paid sick leave under the San Francisco Paid Sick Leave Ordinance.
Any covered San Francisco employers who have not already updated their leave policies, should revise accordingly to comply with this Ordinance.
…And the West Hollywood Paid Time Off Ordinance
As discussed more in depth in our prior blog, on November 15, 2021, West Hollywood enacted an ordinance requiring employers to allow accrual of up to 96 paid hours per year for sick leave, vacation, or personal necessity to full-time employees, and instituting a number of other requirements. On May 16, 2022, West Hollywood amended the Ordinance, and recently released regulations and administrative materials, such as required posters regarding the new minimum wage and the time off components.
West Hollywood employers who have not already updated their policies accordingly, take note!
Just because New Year’s is famous for dropping a big ball doesn’t mean your company has to! Before you start singing “Auld Lang Syne,” reach out to Seyfarth’s Handbooks and Policy Development Group to begin your new year off right and ensure your handbook and policies are in compliance with California law.
Edited by Coby Turner