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.
Next week, we’ll look at five more new laws, regulations and trends that employers need to be aware of coming into 2022.