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Key Amendments To FFCRA & California’s New COVID-19 Sick Leave Requirements

March 2021 brought a variety of legislative changes impacting California employers.  On March 11, 2021 President Joe Biden signed the American Rescue Plan Act of 2021 (the Act).  Among other things, including the widely publicized $1,400 stimulus payments, the Act extends the $300.00 federal unemployment benefit and the availability of the payroll tax credits to employers through September 30, 2021.  Additionally, for those employers who opt to continue to provide Families First Coronavirus Response Act (FFCRA)-type leave, the Act makes several significant changes to how the FFCRA is to be implemented with regard to both Paid Sick Leave and Emergency Family and Medical Leave (EFML).

Then, on March 19, 2021, California Governor Gavin Newsom signed Senate Bill 95 (SB 95), providing a new form of COVID-19 related paid sick leave for many California workers.  The new law, among other things, extends protections to employees who are teleworking and expands the qualifying reasons for COVID-19 sick leave.

We provide below a summary of the key amendments to FFCRA and highlight the requirements under the newly promulgated California COVID-19 supplemental paid sick leave.

Key Amendments Under The American Rescue Plan Act Of 2021

By way of review, employer obligations to provide paid

California’s Wage Statement Law Applies to Interstate Transportation Workers

On February 2, 2021, the Ninth Circuit Court of Appeals issued a decision that affects all California employers that employ interstate transportation workers.  In Ward v. United Airlines, the court held that federal law did not prevent California’s wage statement law from applying to pilots and flight attendants who are based in California, spend most of their time working outside of California, and do not work a majority of the time in any one state.  Specifically, the court rejected arguments based on three sources of federal law: the dormant Commerce Clause, the Airline Deregulation Act, and the Railway Labor Act.

The dormant Commerce Clause limits the states’ authority to enact or enforce laws that burden interstate commerce, even in the absence of legislation by Congress. State laws that discriminate against or directly regulate interstate commerce are virtually per se invalid, while non-discriminatory laws that have only incidental effects on interstate commerce will generally be upheld unless the burden on interstate commerce is clearly excessive in relation to the putative local benefits.  The Ninth Circuit held that California’s wage statement law does not discriminate against interstate commerce, because the law applies to employers evenhandedly whether they are based inside or outside

New California Family Rights Act Dramatically Expands Employee Rights and Employer Obligations

On September 17, 2020, California Governor Gavin Newsom signed Senate Bill (SB) 1383, which repealed the current California Family Rights Act (CFRA), eliminated the California New Parent Leave Act, and replaced those statutes with a new CFRA, codified in California Government Code Section 12945.2, et seq.  Effective Janu­ary 1, 2021, CFRA will cover employers with as few as five employees and expand the reasons for which CFRA leave may be used, among several other changes.  Important aspects of the new law, as well as key considerations for employers to consider in developing compliance plans, are set forth below.

Expanded to Cover Smaller Employers

Currently, CFRA (modeled largely after the federal Family and Medical Leave Act (FMLA)) applies to private employers with 50 or more employees and public employers of any size.  The new CFRA lowers the employee threshold and applies to private employers with five or more employees.

Therefore, CFRA will now apply to much smaller employers. Many smaller employers likely never had to comply with FMLA or CFRA, so there may be a steep learning curve between now and January 1, 2021.

Expanded to Cover More Employees:  75-Mile-Radius Eligibility Requirement Eliminated

To be eligible for leave under the current

California Passes COVID-19 Supplemental Paid Sick Leave Law

On September 9, California Governor Newsom signed a bill that establishes COVID-19 supplemental paid sick leave (“COVID-19 PSL”) for California workers generally not covered by the federal Families First Coronavirus Response Act (“FFCRA”).

Important Dates

Employers are required to begin providing COVID-19 PSL by September 19.

Employers must also post a notice in their workplace by September 19.  If employees are not physically present in the workplace, the employer may disseminate the notice electronically.

Starting in the first pay period after September 9, employers must provide notice in a wage statement (or a separate writing provided on pay day) of an employee’s available COVID-19 PSL each pay period.

The requirement to provide COVID-19 PSL expires on December 31, 2020 or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA.

Covered Employers & Employees

California’s new law applies to private employers with 500 or more employees in the United States.  It also applies to any public or private entity that employs health care providers or emergency responders and that has elected to exclude such employees from emergency paid sick leave under the FFCRA.

Workers are entitled to COVID-19 PSL only

The CCPA: Employee Data Requirements May Be Delayed, But Do Not Appear to be Going Away

July 12, 2019

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Action is currently underway to amend the California Consumer Privacy Act (“CCPA”) to provide employers an additional year to comply with the CCPA with respect to employee data of California-based employees.

The California Senate Judiciary Committee has passed AB-25, an amendment to the CCPA that would delay most of the compliance obligations for employee data until January 1, 2021. Specifically, the amendment provides that employees are not “consumers” for most purposes of the statute until January 1, 2021.

If the legislature passes the bill, the CCPA will still apply to employers with California-based employees in the following ways, effective January 1, 2020:

  • Employees will be able to sue employers for a data breach involving their unencrypted data
  • Employers must provide a notice to employees describing the categories of employee information collected, used and disclosed by the employer.

While there have been many predictions that the CCPA would be amended to remove employee data from the requirements of the statute altogether, if the California state legislature approves the bill amending the CCPA, the effect will be to simply delay the compliance obligations for employers for a year.

For now the bill is with the Senate Appropriations Committee for hearing and

California Employers Have Less Than Six Months To Complete Sexual Harassment and Abusive Conduct Training

In September 2018, California passed SB 1343, which expanded the sexual harassment training requirements for California employers.  Previously, employers with 50 or more employees were required to provide at least two hours of sexual harassment training to all supervisory employees within six months of their assumption of a supervisory position and once every two years thereafter.

SB 1343 expands the training requirement in two key ways.  First, it requires employers who employ five or more employees to provide sexual harassment training.  Second, in addition to training supervisors, employers must now provide at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every two years thereafter.  As a result, all employees will need to be retrained by January 1, 2022.

The good news for employers is that the California Department of Fair Employment and Housing (“DFEH”) is required to develop online training courses that employers can use to satisfy their obligation to provide sexual harassment training.  The bad news is that the DFEH still has not done so and there is no date certain by which the online training courses will be available.  However, the DFEH has posted a sexual harassment and abusive

Employer CCPA FAQs #9: May an employer become subject to the CCPA because of a corporate transaction?

As our series of FAQs regarding the California Consumer Privacy Act (“CCPA”) continues we are examining the scope of the law’s jurisdiction.    These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).   Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance

Employer CCPA FAQs #8: Does the CCPA apply to non-profit employers?

As our series of FAQs regarding the California Consumer Privacy Act (“CCPA”) continues we are examining the scope of the law’s jurisdiction.    These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).   Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance

Employer CCPA FAQs #7: If an employer is based in California, will the CCPA requirements apply to all employee data held by the employer?

As our series of FAQs regarding the California Consumer Privacy Act (“CCPA”) continues we are examining the scope of the law’s jurisdiction.    These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).   Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance

Employer CCPA FAQs #6: Does an employer need to generate revenue in California in order for CCPA to apply?

As our series of FAQs regarding the California Consumer Privacy Act (“CCPA”) continues we are examining the scope of the law’s jurisdiction.    These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).   Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance program to

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