2020 Legislative Update on Public Sector Labor and Employment Issues

10.13.2020

The 2020 California legislative session ended with a flurry on September 30, 2020. Governor Gavin Newsom signed several important bills relating to the ongoing Coronavirus disease 2019 (“COVID-19”) pandemic.  Governor Newsom also signed bills on other important employment issues, including one of interest to independent contractors and to law enforcement.  Unless otherwise noted, changes to the law in these areas are effective January 1, 2021.

COVID-19-Related Bills

Assembly Bill (“AB”) 685 — COVID-19 Exposure Notification Requirements

AB 685 imposes new COVID-19 reporting requirements on public entity employers, including cities, counties, school districts, county offices of education, community college districts, law enforcement agencies, transit agencies, water districts, and other special districts (“public employers”), starting January 1, 2021.  Public employers will be required to provide written notice to all employees who were at the same “worksite” (within the last 10 days) of an individual who has: (i) a laboratory-confirmed case of COVID-19; (ii) a positive COVID-19 diagnosis from a licensed health care provider; (iii) a COVID-19-related order to isolate provided by a public health official; or (iv) died due to COVID-19.  This notice must be sent within one business day of the public employer receiving “notice of potential exposure” to COVID-19, and must be sent to employee organizations if affected employees are represented.  The written notice must include several pieces of information including, but not limited to, an advisement that the employee may have been exposed to COVID-19 and that they may be entitled to various COVID-19-related benefits or leaves of absence.

Public employers will also be required to notify their local public health department if a COVID-19 “outbreak” occurs at the worksite, which is defined as three or more confirmed cases of COVID-19 in the same worksite within a 14-day period.  Further, AB 685 authorizes the Division of Occupational Safety and Health of California (“Cal/OSHA”) to shut down operations if it determines employees are exposed to risk of a COVID-19 infection so as to constitute an imminent threat.  A limited exception to this shutdown authority exists for certain public employer operations, if it would materially interrupt the performance of “critical government functions essential to ensuring public health and safety functions,” or which are “essential to the delivery of electrical power or water.”  While these terms are not clearly defined by the bill, the exemption would likely include sworn law enforcement personnel, firefighters, and certain water or electrical utility workers.  For more information about AB 685, please see our firm’s prior standalone alert.

AB 1867 — Supplemental Paid Leave for Health Care Providers and Emergency Responders

AB 1867 requires certain public employers covered by the Families First Coronavirus Response Act (“FFCRA”) to provide up to 80 hours of supplemental paid sick leave (“SPSL”) to “health care providers” and “emergency responders,” if those public employers excluded these employees from receiving paid sick leave under the FFCRA.  AB 1867 became effective on September 19, 2020, and will expire on the later of December 31, 2020, or when the FFCRA emergency paid sick leave benefits expire if such benefits are extended.

The COVID-19 SPSL may be used if the employee is: (i) subject to a federal, state, or local quarantine or isolation order related to COVID-19; (ii) advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or (iii) prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.  Generally, public employers may not request documentation from employees requesting to use the COVID-19 SPSL.  While full-time employees are entitled to 80 hours of COVID-19 SPSL, “active firefighters” who work more than 80 hours would be entitled to an amount of leave equal to the total number of hours that the employee was scheduled to work in the preceding two weeks. 

Similar to the FFCRA, COVID-19 SPSL benefits are capped at five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate.

Public employers may be able to take credit for other paid benefits or leave provided to these employees for the same COVID-19-related purposes set forth in AB 1867.  If public employers provided 80 hours of leave or benefits, but did not pay it at rates required by AB 1867, the public employer may retroactively provide the supplemental pay required by the law without having to provide additional SPSL.  For more information about AB 1867, please see our firm’s prior standalone alert.

AB 1159 — Workers’ Compensation Presumption Regarding COVID-19

AB 1159 implements a rebuttable presumption for purposes of workers’ compensation benefits, that an employee contracted COVID-19 at work if certain measures are met.  For most public employees, it is presumed that an employee contracted COVID-19 at work if: (i) the employee tests positive for COVID-19 within 14 days after a day that the employee performed labor at the “place of employment” at the employer’s direction; (ii) the work was performed at the “place of employment” on or after July 6, 2020; and (iii) the employee’s positive test occurred during a period of “outbreak.”  For first responders and health care employees, it is presumed that an employee contracted COVID-19 at work if the first two of these factors occur.

If the presumption stands, employees may be entitled to full hospital, surgical, medical treatment, disability indemnity, and death benefits.  Public employers may rebut this presumption by satisfying several factors.

An “outbreak” exists if within 14 calendar days, one of the following occurs: (1) if the employer has 100 or fewer employees at a specific place of employment, four employees test positive for COVID-19; (2) if the employer has more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment test positive for COVID-19; or (3) a specific place of employment is ordered to close down by a local public health department, the State Department of Public Health, or Cal/OSHA due to a risk of infection with COVID-19. 

AB 1159 also requires that public employers notify their claims administrators within three business days when an employee tests positive, and provide certain information relating to the employee’s “specific place of employment” for the 14-day period preceding the positive test. The bill imposes civil penalties on public employers in the event they intentionally submit false or misleading information to claims administrators in this regard.  For more information about AB 1159, please see our firm’s prior standalone alert.

Peace Officer-Related Bills

AB 1196 — State Prohibition on Use of Chokeholds

AB 1196 imposes statewide restrictions on a particular use of force for law enforcement personnel, by prohibiting the use of a “carotid” or “choke hold” restraint to effect an arrest, prevent escape, or overcome resistance from an individual.  A “carotid restraint” involves a “vascular neck restraint”, or similar hold or defensive tactic, in which “pressure is applied to the sides of a person’s neck” which involves a risk of blood flow restriction and may render the person unconscious.  A “choke hold restraint” is defined more broadly to include “any defensive tactic or force option in which direct pressure is applied to a person’s trachea or windpipe.”  This bill will require local law enforcement agencies to amend their use of force policies to comply with this prohibition.

AB 1506 — Use of Force Investigations

Law enforcement agencies are currently required to report officer-involved shootings, or use of force resulting in death or serious bodily injury, to the California Department of Justice (“Cal-DOJ”).  AB 1506 would create a new division in Cal-DOJ to review law enforcement agencies’ use of force policies and make recommendations, upon request of the agency.  Further, state prosecutors would be required to investigate incidents resulting in the death of an unarmed civilian, to prepare a written report, and to publish the report online.  These reports must include, among other items, recommendations for the law enforcement agency to modify their policies and practices.  Finally, AB 1506 would require state prosecutors to pursue criminal actions against a law enforcement officer if warranted by the investigation.

AB 846 — Anti-Bias POST Screening and Community Policing

The Commission on Peace Officer Standards and Training (“POST”) provides minimum standards and requirements for sworn law enforcement personnel, and helps administer training programs for these individuals.  AB 846 would require the POST Commission to update their regulations and associated screening materials related to the emotional and mental condition evaluation of sworn law enforcement personnel, to identify explicit and implicit bias against race or ethnicity (among other grounds).  Further, local law enforcement agencies must review their peace officer job descriptions to emphasize community-based policing and collaborative problem solving and de-emphasize the paramilitary aspects of the job.

AB 1185 — County Oversight Boards for Sheriff Departments

AB 1185 permits counties statewide to establish a sheriff oversight board to assist county governing bodies with those oversight duties as they relate to county sheriff’s departments.  The bill also permits a county board of supervisors to establish an office of the inspector general to coordinate with and assist the governing body with its oversight of the county sheriff’s department.  These new governmental bodies would hold the legal authority to issue subpoenas in the execution of their investigative duties.

Miscellaneous Bills

SB 1383 — Expansion of CFRA to Cover Spouses, Grandparents and Grandchildren

SB 1383 provides a large expansion of the California Family Rights Act by covering individuals previously excluded from the law.  The bill expands employees’ family leave rights by including care for siblings, grandparents, and grandchildren, as well as children, parents, spouses, and registered domestic partners.  Further, employers must provide 12 weeks of unpaid leave to each parent for “baby bonding” within one year of the birth or adoption of a child.  Previously, employers were only required to extend a combined 12 weeks of unpaid leave to both parents.  For more information about SB 1383, please see our firm’s prior standalone alert.

AB 2257 — Expansion of Dynamex Exemptions

AB 2257 provides significant and immediate changes to an evolving employment issue in California, modifying the statutory framework for evaluating independent contractor status.  AB 2257 took effect immediately upon the Governor’s signature.  In April 2018, the California Supreme Court created the new “ABC test” for determining whether an individual qualified as an independent contractor in its Dynamex Operations v. Superior Court (2018) 4 Cal.5th 903 decision.  The California Legislature chose to adopt the “ABC test” into statutory law in October 2019 through AB 5.  This past bill codified the “ABC test”, in which an individual is presumed to be an employee unless the test’s three factors are met.  AB 5 also provided several exemptions for particular industries or categories of workers, in which workers would be required to meet the previous Borello test to qualify as an independent contractor.  For information about AB 5 and Dynamex, please see our firm’s prior standalone alert.

AB 2257 expands the exemptions from the “ABC test”, thereby making it easier for more workers to satisfy the less stringent Borello test for independent contractor status.  Among other changes, the bill expanded the “business to business” exemption to specifically apply to a “public agency or quasi-public corporation” which has entered into an agreement with an outside contractor.  It had not been clear whether this exemption was available for parties contracting with public employers.  For more information about the host of other changes contained in AB 2257, please see our firm’s standalone alert.

AB 992 — Permissible Social Media Communications for Public Officials

AB 992 provides a limited exception to the definition of a “meeting” under the Brown Act for discrete communications occurring online using social media platforms.  Members of legislative bodies, including local governing bodies, may individually communicate with members of the public using an online social media to answer questions, provide information, and/or solicit information from the public concerning a matter within the subject matter jurisdiction of the governing body. 

The bill clarifies that this limited exception would not permit members of legislative bodies to use social media platforms to communicate among themselves business within the bodies’ jurisdiction, and thereby avoid the requirements of the Brown Act.  For more information about AB 992, please see our firm’s prior standalone alert.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

©2020 Atkinson, Andelson, Loya, Ruud & Romo

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