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  • Glicel Sumagaysay

2021 Employment Laws

Below are some key points of notable employment laws that will take effect on January 1, 2021.

The CFRA will make it unlawful for employers with 5 or more employees to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period or who meets other specific requirements listed in subdivision (r), to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.

The employer must guarantee the employee who meets that criteria the same or a comparable position after the end of the leave.

Reasons for leave covered under the CFRA include:

> the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee;

> care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition;

> an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

Public and private employers whose workers provide direct care to patients must supply employees with PPEs and ensure the employees are using them. Single use PPEs cannot be expired or previously used. Employers can be penalized in an amount up to $25,000 for providing previously used or expired single use PPEs. Employers must stockpile 3 months' worth of certain types of PPEs.

AB 2992: Leave Time for Victims of Domestic Abuse Employers are prohibited from discharging, or discriminating or retaliating against an employee who is a victim of crime or abuse for taking time off from work to obtain or attempt to obtain relief.

Through January 1, 2023,

> Employers must notify all employees of potential COVID-19 exposure, employee benefits and protections, and the employer safety measures they will take in response to potential exposure.

> Employers must also notify local public health agencies of all workplace outbreaks (3 or more confirmed cases of COVID-19 among employees from different households within a 2-week period).

> When the California Division of Occupational Safety and Health ("Division") deems a place of employment or one of its divisions as exposing its workers to the risk of infection with COVID-19 so as to constitute an imminent hazard to employees, the Division can shut down the exposed area or worksite with notice.

> The Division can also immediately issue citations for employer violations related to COVID-19.

This law revises AB 5, further clarifying professions subject to the ABC test or Borello test to determine whether a worker is an independent contractor or employee.

Among those now subject to the Borello test instead of the ABC test are:

>Music-industry workers related to creating, marketing, promoting and distributing music recordings, including record producers, composers, recording artists, photographers, musicians, vocalists under certain circumstances.

>Fine artists

>Grant writers

>Human resources administrators

>Journalists such as freelance writers, copy editors, producers, editors.

Notably, the law provides an exemption from the ABC test for business to business relationships between 2 or more sole proprietors if certain conditions are met.

Illness or death resulting from COVID-19 are included in the definition of "injury" if employees test positive for COVID-19 within 14 days from performance of work at employer's location at which there was a COVID-19 outbreak for potential workers' compensation claim approval. This injury creates a presumption that can be disputed that the COVID-19 infection occurred due to work, and is therefore compensable, through workers' compensation. Such claims, if accepted, would be paid sooner than usual within a 30 or 45-day period, depending on the circumstances.

Employers should ensure their policies and handbooks are updated and they take appropriate steps to be in timely compliance with these laws.

Employees should be aware of their new or clarified rights.


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