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.
1. 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.
2. 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 set to expire Jan. 14, 2022.
The ETS is expected to be readopted as Cal/OSHA continues work on the language of the permanent standard. Adoption is expected in the spring of 2022.
Here’s some of what the draft standard would do:
- CDPH rules — It would require that employers follow California Department of Public Health COVID-19 prevention orders.
- Masks for unvaxxed staff — Unvaccinated staff must wear masks. Employers must provide masks when the CDPH requires them.
- Outbreak rules — During an outbreak in the workplace, all staff would be required to wear face coverings regardless of vaccination status. Employers would need to provide respirators during major outbreaks to all employees.
- No COVID-19 Prevention Plan — Employers would not need to have a COVID-19 Prevention Plan, as required in the ETS. Instead, they would be required to address COVID-19 prevention strategies in their Injury and Illness Prevention Plan.
3. 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.
4. 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.
5. Workplace settlement agreements and NDCs
A new law takes 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.
OSHA vaccine mandate
As of this writing, Fed-OSHA’s new emergency COVID-19 standard is set to take effect on Jan. 1, 2022, with the most contentious part of the rule mandating that employees who work for employers with 100 or more staff be vaccinated or submit to weekly testing.
Unvaccinated workers would also be required to wear masks while on the job under the new rules, which have faced fierce challenges in courts.
The U.S. Court of Appeals for the Sixth District in Cincinnati decided on Dec. 17, 2021 that the mandate for large employers could go forward, reversing a previous court decision made after 27 Republican-led states and businesses challenged the mandate.
OSHA said it would not start issuing penalties for failing to meet the vaccine standard until Jan. 10, in order to give business time to ramp up compliance. The agency also said citations around COVID-19 testing would not begin before Feb. 9.
The case is now heading to a showdown in the U.S. Supreme Court, which will decide the final fate of the standard, likely as early as January.
Wage theft penalties
AB 1003, which takes effect Jan. 1, will add 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.
Required posters and notices will still need to be physically posted in the workplace.
Warehouse quota rules
A new law that takes effect Jan. 1, 2022 makes California the first (and only) 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.