Current Employer Notifications, News and Publications
California's Plan Issued for Future Reopening
Reprinted with permission on Sept 2, 2020
Synopsis- As several counties struggled to get, and remain, off of the California County Data Monitoring List, Governor Newsom unveiled a new framework with revised criteria for loosening and tightening COVID-19 restrictions that replaces the monitoring list altogether. This shift brings with it the reopening of some non-essential indoor activities and the re-closure of others.
New California SB 1383 Law Expands Employee Entitlement to Family and Medical Leave
California employers with as few as five employees must provide family and medical leave rights to their employees under a new law signed by Governor Gavin Newsom on September 17, 2020. The new law significantly expands the state’s existing family and medical leave entitlements and goes into effect as of January 1, 2021.
California's Plan Issued for Future Reopening
(1. Continued from above)
On the afternoon of Friday, August 28, 2020, Governor Newsom announced California's Blueprint for a Safer Economy, replacing the California County Data Monitoring List that previously dictated what businesses and activities were allowed to operate. The State's new COVID-19 guidance imposes risk-based criteria on loosening (and tightening) restrictions on permitted activities. The Blueprint also expands the length of time between restriction modifications to allow the State time to assess how any modification impacts the trajectory of the disease. Under the Blueprint framework, effective Monday, August 31, 2020, some non-essential indoor business operations were given the green light to reopen and others were forced to close.
Built on a "Tiered System"
The State Public Health Officer issued a new order on August 28, superseding
the previous July 13 order and further explaining how the Blueprint will be implemented. Built on a 4-tier system the Blueprint contains four colors, ranging from Purple Tier 1 where the risk of community disease transmission is highest (or "widespread") to Yellow Tier 4 where the risk of community disease transmission is lowest (or"minimal"):
Available at Blueprint, Tier Framework (Last visited September 1, 2020)
Not The Kind of Map You're Used To
With the new framework comes a simpler means of keeping Californians informed as to where their county falls and what activities are allowed in each county. The State's country tracking webpage offers up-to-date information on different counties' tier statuses. Users can search by county and activity to see whether a particular business or activity is currently permitted. The page also offers a color-coded map and includes statewide metrics.
State of California Monitoring
The State will conduct weekly assessments of indicator data beginning on September 8, 2020, and will release updated tier statuses every Tuesday. The key indicator data is case and positivity rates, but the framework also takes into account equity metrics assessing data collection, testing access, and contact tracing for California communities most impacted by the virus. Unless the Public Health Officer specifies otherwise, there is a mandatory 21-day waiting period before county can move between tiers, and counties may only progress one tier at a time, even if their metrics qualify for a more advanced tier. If a county's metrics fall into two different tiers, the county will be assigned to the more restrictive tier. If a county's indicators dip to a more restrictive tier's metrics for two consecutive weeks, the county tier status will be demoted and, within 3 days, the county must implement the enhanced restrictions.
Additionally, local health jurisdictions may continue to implement or maintain more restrictive public health measures if their Local Health Officer determines that health conditions in that jurisdiction warrant such measures.
Navigating the constant COVID-19 policy changes in California can be extremely complicated. But luckily, ACG Consulting Services can assist our clients by keeping up with California new COVID and other employment related regulatory compliance and be able to provide guidance to each.
Eric Martin, MBA
Senior HR & Safety Compliance Consultant
ACG Consulting Services, Inc.
ACG Consulting Services, Inc. has been assisting employers since 1973 by providing a helpful and experienced resource for guidance specific to employment, human resources, health, safety and environmental compliance. For further information regarding ACG Consulting Services or for question specific to the information contained within the current employer bulletin, contact Eric Martin at 1-949-452-1840 or email;
New California SB 1383
(2. Continued from above)
Expanded Eligibility to Small Employers
Under pre-existing law, employers were not required to provide family care and medical leave under the California Family Rights Act (CFRA) (Cal. Gov. Code section 12945.2), if the employee seeking leave worked at a worksite with fewer than 50 employees within a 75-mile radius. Similarly, employers were not required to provide “baby bonding” leave under the New Parent Leave Act (NPLA) (Cal. Gov. Code section 12945.6), if the employee seeking leave worked at a worksite with fewer than 20 employees within a 75-mile radius.
SB 1383 repeals CFRA and NPLA and expands the obligation to provide leave to small employers not covered before. The new law requires employers with at least five (5) employees to provide an otherwise eligible employee with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons. The employer must maintain and pay for the employee’s coverage under a group health plan for the duration of the leave at the level and under the condition’s coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.
Additional Covered Family Members and Expanded Reasons for Leave
SB 1383 also expands the covered family members and potential reasons for which an eligible employee may take leave. Under SB 1383, eligible employees may take leave to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.
Under the prior CFRA statute, leave for purposes of caring for a family member was available only if the family member was the employee’s child, a parent, spouse, or domestic partner.
Other Significant Changes Container in SB1383
The newly signed law now requires an employer that employs both parents of a child to grant up to 12 weeks of leave to each employee. Under pre-existing law, the employer only had to grant both employees a combined total of 12 weeks of leave.
The new law also requires employers to provide up to 12 weeks of unpaid job-protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States. Lastly, SB 1383 does not permit an employer to refuse reinstatement of “key employees” as was previously allowed by the CFRA under qualifying circumstances.
Under SB 1383, employees will still need to meet eligibility requirements, including 12 months of service and 1,250 hours worked for the employer in the previous 12-month period, to qualify for family and medical leave.
Does SB 1383 affect employers that have 50 or more employees and are therefore covered under both the CFRA and the FMLA?
YES. SB 1383 now creates some unique challenge for employers already eligible for CFRA administration and compliance. The new law now creates a “stacking” problem” with The Federal Family Medical Leave Act (FMLA). Generally, leave under CFRA and FMLA runs concurrently, meaning an employee is generally only eligible for a total of 12 weeks of unpaid leave under both laws.
However, because SB 1383 now expands the definition of “family member” under the CFRA in a manner inconsistent with the definition under the federal FMLA, the two laws are no longer in sync. This creates the unfortunate situation in which an employee is eligible for 12 weeks of leave under the CFRA but remains eligible for a full additional 12 weeks under the FMLA.
For example, suppose an employee working for an employer with 50 or more employees needs to take family leave to care for a sibling with a serious health condition. Under SB 1383, the employee would be eligible to take up to 12 weeks of leave in order to do so. However, because “siblings” are not covered under the federal FMLA, that same employee would potentially still be eligible to take 12 weeks of leave under the FMLA for a child, parent or spouse. Under this example, an employer could be faced with providing up to 24 weeks of leave to such an employee!
Due to the expanded definition of “family member” in the new law, even employers that were already covered by the CFRA (50 or more employees in a 75-mile radius) will need to now update their policies, procedures and forms to be compliant with the new provisions of the law.
What Employers of All Sizes Need to Do Sooner Than Later
SB 1383 is basically Governor Newsom’s own personal proposal, as he announced this past January that he wanted these particular policy changes “be made this year”. After the COVID-19 pandemic decimated the economy and businesses small and large, the employer community petitioned the governor and the legislature not to impose this mandate at the worst possible time. Nevertheless, the governor insisted on moving forward with this proposal and the legislature passed it by the slimmest of margins. Hence, he signed SB 1383.
Consequently, California businesses of all sizes will need to make changes to their employment and company employee handbook policies by January 1, 2021 that incorporate the SB 1383 provisions. (Additional policy changes should be also expected due to legislation expected to be signed into law by the Governor of California by end of September 2020).
Smaller employers have likely never had to comply with a family and medical leave law such as CFRA, so there may be a steep learning curve between now and January 1. Hence, smaller employers should immediately begin the process of preparing for January 1, 2021. Employers are well advised to start working with their employment counsel and HR advisors to develop policies and procedures and begin preparing themselves for implementing and administering these new requirements.
ACG Consulting Services will be prepared to assist all of our clients and members with professional guidance relative to all the new leave expanded requirements as well as our staff can provide employee handbook updating and revising as needed.
ACG CONSULTING SERVICES, INC.1-949-452-1840