Three New Employment Laws Every California Employer Needs To Know Heading Into 2022 – Employment and HR

Emily Parkin


United States:

Three New Employment Laws Every California Employer Needs To Know Heading Into 2022


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Here is a summary of the top three new laws all California
employers need to be ready for as we bid “adieu” to 2021
and welcome in 2022:

COVID-19: The one thing we have all learned
over the last two years is that nothing in connection with COVID-19
stays the same for too long and laws regarding workplace protocols
to protect against the spread of COVID are no exception.
Cal/OSHA has updated its November 2020, Emergency Temporary
Standard (“ETS”) with the amendments kicking-in on
January 14, 2022 and remaining in place until at least April 14,
2022. Cal/OSHA’s most recent amendments to its ETS
include:

  • Mask Requirements: Cal/OSHA is requiring that
    all California employers provide unvaccinated employees with face
    covering of at least two layers and ensure that the unvaccinated
    employees are wearing the face coverings anytime they are in common
    areas within the workplace. Two things to note here: first, both
    the state of California and the Los Angeles Department of Public
    Health currently define “fully vaccinated” as those
    employees whom an employer has confirmed received, at least 14 days
    prior, the second dose of a two-dose COVID-19 vaccination series or
    a single dose COVID-19 vaccination. Second, employers located in
    Los Angeles county are held to a higher standard and must require
    all employees to wear masks while in common areas of the workplace
    regardless of their vaccination
    status.

  • Returning to Work after “Close Contact” or a
    Positive COVID Diagnosis:
    The amended ETS creates
    a complex new set of protocols employers must follow when
    permitting employees who tested positive for COVID or who have been
    in “close contact” with a confirmed COVID case to return
    to work1. While these protocols vary depending on
    the exposed employee’s vaccination status and whether the
    employee is asymptomatic, in summary, employees who have recently
    recovered from COVID and those “fully vaccinated”
    employees who have had “close contact” are not required
    to be excluded from the worksite, but they must wear masks and
    social distance for 14 calendar days after their COVID symptoms
    subside or the last date of contact. 

It is important to note that, as of this Client Alert,
California has not instituted a
requirement that California employers mandate COVID vaccinations
for their employees and the federal COVID vaccination mandate that
would affect California employers with 100 or more employees,
(which will be implemented through federal OSHA’s ETS and not
Cal/OSHA), is on-hold until at least January 7, 2022 when the US
Supreme Court takes up the issue.

Settlement and Separation Agreements: In
2019, as part of the “#MeToo” movement, the California
legislature passed a law that significantly curtailed the use of
non-disparagement and non-disclosure provisions in settlement
agreements involving claims of sexual harassment, sexual assault,
or gender discrimination. SB 331 builds on these restrictions that
seek to limit an employee’s ability to disclose certain factual
information regarding workplace complaints in several key
ways. First, it expands the list of claims that cannot be
subject to these provisions to allegations of harassment or
discrimination based on any characteristic under the Fair
Employment and Housing Act which can include race, physical or
mental disabilities, gender identity or expression, and age.
Second, it makes this prohibition now applicable to “any
agreement” related to an employee’s separation from
employment, meaning that separation or severance agreements must
now conform to this law as well as settlement agreements. Third, it
makes it an “unlawful employment practice” for an
employer to require an employee, as a condition of employment (or
continued employment), to sign any document that would “deny
the employee the right to disclose information about unlawful acts
in the workplace”. This law will have a substantial
impact on the use of confidentiality, non-disparagement and
non-disclosure provisions in employment agreements entered into
after January 1, 2022. SB 331 provides several permissible
work-arounds to its prohibitions such as limiting language and
exclusions for “voluntary…negotiated” settlement
agreements.

CFRA Changes: The California Family Rights Act
(“CFRA”) makes it an unlawful employment practice for an
employer to refuse to grant a request by an “eligible”
employee to take up to 12 workweeks of unpaid protected leave
during any 12-month period for family care and medical leave. AB
1033 makes two significant changes to the CFRA. First, it clarifies
that a covered “family member” now includes
“parents-in-law”. Second, AB 1033 revises and adds
more depth to the CFRA’s mediation program for small employers
(defined as employers with 5-19 employees). Originally, the goal of
the small employer mediation program was to protect small employers
from costly lawsuits while at the same time protecting the rights
of employees who believed they had been denied the full protections
of the CFRA by permitting either party to request a mediation after
a right to sue letter was issued. The problem was that if an
employee requested an immediate right to sue letter, an employer
would never receive notice of it in time to request a mediation
prior to a lawsuit being filed. AB 1033 seeks to fix this problem
by:

  • Making participation in the mediation program a prerequisite to
    an employee filing a civil suit;

  • Requiring all right to sue letters issued after January 1, 2022
    to provide notice of this pre-lawsuit mediation requirement as well
    as instructions on how to initiate a mediation; and 

  • Allowing a small employer to stay a civil case or arbitration
    to pursue a mediation for any claim that was eligible for the
    program. 

Footnote

1 “Close contact” is defined as being
within 6 feet of a person with COVID for a total of 15 minutes in
any 24-hour period. 


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This alert provides general coverage of its subject area. We
provide it with the understanding that Frankfurt Kurnit Klein &
Selz is not engaged herein in rendering legal advice, and shall not
be liable for any damages resulting from any error, inaccuracy, or
omission. Our attorneys practice law only in jurisdictions in which
they are properly authorized to do so. We do not seek to represent
clients in other jurisdictions.

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