New Laws in 2022 - What Employers Should Know
Below is a summary of the many significant changes in employment laws for 2022. The descriptions below are brief, but if you have any further questions or concerns regarding these laws, please do not hesitate to contact one of the attorneys you work with at Schwartz Semerdjian.
Wage and Hour - SB 572: Lien available to Labor Commissioner to collect unpaid wage and hour
Beginning on January 1, 2022, the California Labor Commissioner will be allowed to obtain a lien on real property for any wage and hour award levied against an employer. SB572 now gives the Labor Commissioner an alternative to a judgment lien when trying to secure amounts due. Unless the lien is satisfied or released, the lien will continue to grow until 10 years from the date of creation and may be extended for additional 10-year periods at any time before it expires.
Workplace Safety - SB 606: New categories of CAL/OSHA violations
SB 606 expands the scope of the enforcement power of Cal/OSHA. This law creates 2 new categories of violations including “egregious” and “enterprise wide.”
Enterprise Wide: A violation is considered “enterprise wide” and carry a penalty up to $134,334 per violation if:
- The employer has a written policy or procedure that violates certain safety rules; or
- Cal/OSHA has evidence of a pattern or practice of the same violation committed by that employer involving more than one of the employer’s worksites.
Egregious Violation: An egregious violation is one where an employer willfully or egregiously violated a safety or health standard. An egregious violation can be any of the following:
- The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
- The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses.
- The violations resulted in persistently high rates of worker injuries or illnesses.
- The employer has an extensive history of prior violations of this part.
- The employer has intentionally disregarded their health and safety responsibilities.
- The employers conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
- The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.
Family Leave - AB 1033: Employees are eligible for time off to provide care to parent-in-law
AB 1033 extends The California Family Rights Act (“CFRA”) so that eligible employees will be granted up to 12 weeks of job-protected time off to provide care for a parent-in-law with a serious medical condition. This new law also requires the Department of Fair Employment and Housing to notify an employee, who requests a “right to sue” letter for CFRA violations, of the requirement for mediation prior to filing a civil action.
Discrimination - SB 331: Expansion of prohibition of non-disclosures in the workplace
This bill goes into effect January 1, 2022, and expands the 2018 STAND Act to broadly prohibit confidentiality provisions in settlement agreements involving workplace discrimination or harassment based on any protected characteristic under the Fair Employment and Housing Act. This means that discrimination based on race, religion, color, national origin, disability, and other are protected from confidentiality and non-disclosure agreements.
Starting January 1, 2022, California employers with 25 employees or less will need to pay their employees no less than $14.00 per hour. Employers with 26 or more employees will need to pay their employees no less than $15.00 per hour.
The City of San Diego also raised its minimum wage requirements to $15.00 regardless of employer size.
New COVID-19 Laws - However, as long as the virus continues to mutate, laws related to the virus will continue to evolve.
CAL/OSHA Emergency Temporary Standards:
Although these standards say that employees who test positive for COVID need to stay away from the workplace for ten (10) days, because the California Department of Public Health recently shortened its quarantine and isolation periods, the Cal/OSHA timeline is also shortened unless local health departments require otherwise.
Thus, if an employee tests positive, the employee can return to work after completing five (5) days of isolation so long as the employee tests negative on or after the fifth day of isolation, has no symptoms, and wears a mask for the next five (5) days at work. The County of San Diego just adopted CDPH’s new five-day rule for all except health care workers.
If an employee is unable to test or chooses not to test, the employee needs to isolate for a full ten (10) days or until any fever or other symptoms resolve, if longer.
On December 16, 2021, Cal/OSHA readopted the COVID-19 Emergency Temporary Standard (ETS) with some revisions. The ETS will go into effect starting on January 14, 2022, and will remain in effect until April 14, 2022. A summary of the ETS is as follows:
- Testing requirements: Employees who are tested for the virus can no longer use the “at-home, self-administered tests” unless observed by the employer or an authorized proctor.
- Face Coverings: Proper face coverings must pass the “light test.” This means that a cloth face covering may not let light pass through when held up to a light source.
- Close Contact Exclusion: Asymptomatic, fully vaccinated employees who had “close contact” with an individual who tested positive for COVID-19 do not need to be excluded from work if they wear a face covering and maintain social distancing from others for at least 14 days following the date of the contact. Asymptomatic, unvaccinated employees who had close contact must be excluded for seven (7) days. When they return, they must also wear a face covering and maintain social distancing for another 14 days.
COVID-19 - SB 93: Employee’s let go during COVID-19 have a “right of recall.”
On April 16, 2021, Governor Newsom signed SB 93 which is commonly referred to as the “right of recall.” This bill requires that certain employers offer covered employees who were laid off due to the COVID-19 pandemic written job offers as positions open up. This law applies to hotels, private clubs, airport hospitality operations, and service providers. If an employer in these fields intend to fill a position, they must first offer it to all covered employees who are qualified. “Covered Employees” are defined as employees who:
- Were employed by covered employers for six months or more preceding January 1, 2020;
- Worked for two or more hours per week; and
- Were separated from active service due to a reason related to the COVID-19 pandemic
This law will remain in effect until December 31, 2024.
COVID-19 Exposure Notification - AB 654: Notice of Outbreak to public health agency.
SB 654 further clarifies the previous COVID-19 notice bill, AB 685. This law requires employers to give notice, within 48 hours or one (1) business day (whichever is later,) to the public health agency of a COVID-19 outbreak. This law also expands the exceptions of employers who do not have to give notice to adult day health centers, community clinics, community care facilities, and child day care facilities.