California’s governor recently approved almost two dozen new employment-related laws. Employers with any employees in California should consider whether the laws will impact their business operations. Those most likely to appreciably affect employers will be summarized in this three part series:
Senate Bill 299 and Assembly Bill 592: Additional Pregnancy Disability and Leave-Related Protections (Both effective Jan. 1, 2012): Under current law, employers (with five or more employees) must allow female employees to take Pregnancy Disability Leave (“PDL”) for a reasonable time of up to four months. An employee is entitled to PDL where she is disabled by pregnancy, childbirth, or a related medical condition. Under SB 299, which amends Government Code Section 12945, employers must maintain and pay for group health plan coverage during the entire time that an eligible employee is on PDL. Coverage must be at the level and under the conditions as would have been provided had the employee not gone on leave. Employers can, however, recover from an employee the health care premiums it paid if the employee fails to return from leave, so long as failure to return is not due to the employee taking leave under the California Family Rights Act (“CFRA”) (which provides for family care and medical leave), or due to circumstances beyond the employee’s control.
AB 592 [pdf] makes it an unlawful employment practice for employers to “interfere with, restrain, or deny an employee’s exercise of, or the attempt to exercise, any rights” provided by the CFRA or PDL laws. The legislature determined these protections were important because, as currently written, neither the CFRA nor the PDL laws explicitly prohibit employers from interfering with an employee’s right to take a leave of absence or otherwise exercise their rights under those laws. At bottom, AB 592 is largely “declaratory of  existing law”, as it has been generally understood that an employer’s obligation to provide mandated leave includes the parallel obligation not to somehow interfere with the employee’s right to take mandated leave.
Senate Bill 272: Leave for Donors (Effective immediately): Prior law, enacted only last year, (SB 1304) required employers with 15+ employees to grant a leave of absence to an employee who is an organ donor (up to 30 days in a one-year period) or a bone marrow donor (up to 5 days in a one-year period). SB 272 [pdf] clarifies that the days of donor leave are business days, not calendar days, and may not be considered a break in continuous service for purposes of annual leave, vacation, salary adjustments, seniority or the like. The one-year period is calculated from the date the leave begins. As an initial condition of granting leave, the employer may require the employee to use a certain specified number of days of earned and unused sick leave, vacation or paid time off: up to 5 days for bone marrow donation and up to two weeks for organ donation. The law states that it is declaratory of existing law, so employers are advised to being to comply immediately.
Senate Bill 559: Discrimination Based on Genetic Information (Effective Jan. 1, 2012): SB 559 [pdf] amends the Fair Employment and Housing Act (“FEHA”), among other laws, to prohibit discrimination based on “genetic information”, defined as: the individual employee’s genetic tests, the genetic tests of the employee’s family members, and the manifestation of a disease or disorder in the employee’s family members. The law, including its definition of “genetic information” is generally consistent with and tracks the recently-enacted federal Genetic Information Non-Discrimination Act of 2008 (“GINA”), however it has broader application because it also prohibits discrimination in other non-employment related areas such as housing, business services, licensing qualifications, mortgage lending, life insurance coverage and the like. Check to ensure your GINA-related discrimination policy updates are also compliant with this new California law.
Assembly Bill 887: Discrimination Based on “Gender Identity” (Effective Jan. 1, 2012): AB 887 [pdf] also amends the FEHA to redefine the definition of “gender” and thus explicitly prohibits discrimination based on “gender identity” or “gender expression.” “Gender expression” is defined as “a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.” AB 887 requires employers to allow gender expression related dress, meaning employers must allow employees to dress or appear consistent with that employee’s gender identity and gender expression (although it does not limit an employer’s ability to impose reasonable workplace appearance, grooming, or dress standards). It prohibits gender-related employment violence. Employers are best advised to review and update employee handbooks including the discrimination and dress policies as well as provide additional training to supervisors and managers regarding application of policies in light of this law.