Governor Newsom was presented with 1,046 bills to consider for the 2024 legislative session. By the October 14th deadline, 890 bills were signed and of those 80 new employment related bills were signed.
Below is a brief summary of some of the new laws affecting the workplace. Most become effective January 1, 2024, unless otherwise noted. We will continue to provide updates as more information becomes available on these new laws and how they will impact California employers.
EMPLOYEE USE OF MARIJUANA TESTING LIMITATIONS
Effective January 1, 2024, California Assembly Bill 2188 (AB2188) amends the Fair Employment and Housing Act (“FEHA”), by making it unlawful for an employer to discriminate against an applicant or employee for:
1. the use of marijuana “off the job and away from the workplace” and
2. for an employer-required drug screening test that finds the person to have non-psychoactive cannabis metabolites in their system.
AB 2188 is intended to address the fact that testing for non-psychoactive cannabis metabolites (i.e. the current and common testing method), which can be in someone’s system for weeks after use, has no correlation to whether an employee is currently and/or actively impaired on the job.
While this new law does place certain restrictions on workplace drug testing, employers still may prohibit employees from possessing, being impaired by, or using cannabis on the job. This means employers can still maintain a drug-free workplace. It also does not affect rights or obligations of an employer specified by federal law or regulation as to drug testing.
The new law applies to almost all private employers, employees, and applicants; it does not apply to:
(1) employees in the building and construction trades; (2) positions requiring a federal background investigation or security clearance; and (3) positions required to be tested for drugs pursuant to other state or federal laws or government contracts.
Permitted Testing
Traditional and common tests for marijuana use (i.e., those that test for non-psychoactive cannabis metabolites) can no longer be used for pre-employment drug screening or be the basis for disc
ipline or termination of an employee. However, employers may use testing methods that test the employee’s impairment at the time of the interview or while on-duty and/or test for the psychoactive component of marijuana. Based on these test results an employer can discipline or terminate an employee or discontinue consideration of an applicant.
Revising Drug Policies and Testing
California employers who are not statutorily exempt from the new law should review their current drug screening policies, particularly as they pertain to marijuana, in hiring, discipline, and termination to ensure compliance.
CALIFORNIA LEAVE FOR REPRODUCTIVE LOSS
Senate Bill 848 (SB 848) requires covered employers must provide a covered employee with five (5) days of unpaid leave following a reproductive loss.
The bill prohibits retaliation against an individual who uses this leave or shares information about the leave, and requires employers to maintain employee confidentiality relating to reproductive loss leave.
Covered Employers: Employers with 5 or more employees are required to provide the leave.
Covered Employees: Employees must have been employed for at least 30 days prior to the commencement of the leave.
Reproductive Loss Defined: A failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction (such as artificial insemination or embryo transfer). These occurrences are defined more specifically in the Bill. In the event an employee suffers more than one reproductive loss within a 12-month period, the employer is not obligated to grant leave in excess of 20 days within 12 months.
Timing of the Leave: An employee must be permitted to take the leave on non-consecutive days and the leave must be completed within three (3) months of the reproductive loss. If immediately prior to or immediately following a reproductive loss event, an employee is on or chooses to go on leave from work for pregnancy disability leave or CFRA, or any other leave entitlement under state or federal law (e.g. FMLA), the employee shall complete their reproductive loss leave within three months of the end date of the other leave.
Use of Paid Leave: SB 848 authorizes an employee to use other leave balances otherwise available to them, including accrued and available paid sick leave; otherwise the leave would be unpaid.
Enforcement: The bill makes leave under these provisions a separate and distinct right from any other right under the California Fair Employment and Housing Act.
WORKPLACE VIOLENCE PREVENTION PROGRAM MANDATED
Another significant piece of legislation that has been signed into law is Senate Bill 553 (SB 553) which will require employers to undertake affirmative action to prevent workplace violence. Specifically, by July 1, 2024, employers are required to:
• Establish, implement, and maintain an effective Workplace Violence Prevention Plan (WVPP)
• Maintain a violence incident log,
• Conduct training on workplace violence hazards, and
• Conduct periodic reviews of the plan.
Who is Covered
SB 553 applies to all employers and employees in the State, with a few limited exceptions:
• Healthcare facilities already covered by Cal/OSHA’s Violence Prevention in Health Care standard
• Employees who telework from a location of their choosing that’s outside the control of the employer
• Places of employment where there are fewer than 10 employees working at the place at any given time, that are not accessible to the public and are in compliance with the requirement to develop and maintain an Injury Illness Prevention Plan (IIPP)
• Department of Corrections and Rehabilitation and law enforcement agencies.
Defining “Workplace Violence”
“Workplace violence” is defined broadly as any act of violence or threat of violence that occurs in a place of employment.
The definition includes, for example, verbal and written threats of violence and incidents involving use of a firearm or a dangerous weapon regardless of whether an employee sustains an injury, threats against an employee that results in or has a high likelihood of resulting in injury, psychological trauma, or “stress,” regardless of whether the employee actually sustains an injury.
What Must be Included in a Workplace Violence Prevention Plan?
Workplace Violence Prevention Plans must be in writing and easily accessible by employees. The Plans can be included as a stand-alone section within an existing Injury and Illness Prevention Plan (IIPP) or they can be maintained as a separate document.
Along with identifying the individuals responsible for implementing the Plan, a Plan must include the following procedures for:
• Involving employees in the development and implementation of the Plan
• Coordinating implementation of the Plan and training with other employers such as staffing agencies
• Accepting and responding to reports of workplace violence, and prohibiting retaliation against reporting employees
• Ensuring employees comply with the Plan
• Communicating with employees about: (1) how to report violent incidents, threats, or workplace violence concerns to employer or law enforcement and (2) how concerns will be investigated and results communicated
• Responding to actual and potential workplace violence emergencies
• Identifying and evaluating workplace violence hazards
• Posting incidents response and investigation
• Reviewing Plan effectiveness annually, when deficiency is apparent, or after a workplace violence incident
Training Requirements
Covered employers must provide employees with initial training when the Plan is first established and continue to conduct trainings annually thereafter. Training needs to cover the following topics:
• The employer’s Plan and how employees can obtain a free copy of the Plan
• How to report workplace violence hazards and workplace violence incidents
• Corrective measures the employer has implemented
• How to seek assistance to prevent or respond to violence
• Strategies to avoid physical harm
• Information about the violent incident log and how employees can obtain a copy.
Additional training is required when new or previously unrecognized workplace violence hazards are identified, or when there are changes to the Plan.
Recording, Reporting and Record Retention Requirements
Employers are required to record every workplace violence incident in an incident log including:
• Date, time, and location of the incident
• Detailed description of the incident
• Classification of who committed the violence
• The violence type including whether it was a physical attack or threat, whether weapons or other objects were involved, or whether it was a sexual assault
• Consequences of the incident including whether security or law enforcement was contacted and whether actions were taken to protect employees from a continuing threat
While the IIPP has a 1-year retention period for records of implementation, SB 553 has a 5-year retention requirement for workplace violence hazard identification, evaluation, and correction records.
Records of workplace violence incident investigations (which may not include medical information) are also subject to the 5-year retention requirement. Training records must be retained for at least 1 year.
CONCLUSION
Employers should review and update their current policies and procedures to be in compliance with these, and other, new laws and regulations.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2023.