Seyfarth Synopsis: Although there's no right or wrong time to do a handbook and policy update, we recommend doing them annually, as California law continually changes. Fall is a good touch point to make changes for the next year start, particularly since new laws typically become effective on January 1.
Though it's late October, California temperatures just now are dropping out of the 90s. Meanwhile, stores are full of pumpkins and you may even spy leaves falling from the trees. Could Fall be finally here?
Fall is not just the time to get your sweaters out from under the bed and dust off last year's Halloween decorations—in fact, with the recent end of the legislative session, it's a gourd time to make sure your employee handbook is ready for the year ahead. We have some tips for your company to make sure your handbook and policies are as perfect as that first slice of warm pumpkin pie.
It's Not Just The Color Of The Leaves That Are Changing
This year, the California legislature has made plenty of changes to the various leave laws on the books, many of which will require employers big and small to update handbook policies and draft new policies from scratch. Your company will be thankful for you proactively addressing these new issues:
- California Family Rights Act (CFRA) Expansion: Starting January 1, 2021, all companies with five or more employees nationally (and anyone in California) must provide 12 weeks of unpaid, protected family leave for qualified employees. This means that businesses with fewer than 50 employees must implement a general CFRA leave policy for the first time. In addition, those employers with 20 to 50 employees within 75 miles who had implemented a policy in response to last year's New Parent Leave Act will also need to expand what they are offering to meet the requirements of the amended CFRA.
The new CFRA also expands the categories of family members for which employees may take covered leave. This expansion is in line with California's paid sick leave law and Paid Family Leave benefit program definitions. As a result, there will be additional circumstances where CFRA and FMLA will no longer run concurrently. The new CFRA also eliminates the current carve-outs for certain highly paid or key employees, and company hardship, as well as the mileage threshold for employer CFRA coverage. The new CFRA further adds a qualifying exigency reason for use similar to FMLA. So because the CFRA has a mandatory written policy requirement for employers doing business in California, all covered employers should implement an updated CFRA/FMLA or new CFRA policy and any associated notification letters and designation forms.
- PSL (Paid Sick Leave–not Pumpkin Spice Latte): As of January 1, 2021, employees have the sole discretion to designate days taken as personal paid sick leave, as opposed to kin care sick days. If current policies mandate employees' use of paid sick leave in certain circumstance, employers should update their policies and practices as needed.
- Paid Family Leave: Also as of January 1, 2021, California's Paid Family Leave program is expanding to cover families needing to deal with a qualifying exigency for a covered family member being deployed to a foreign country. The new "Military Assist" benefit will provide paid time off for eligible Californians who need time off work to participate in a qualifying event because of the military deployment of their spouse, registered domestic partner, parent, or child. While there is no handbook policy requirement for PFL, the many employers that include it will need to update their written documentation for these new changes. Employers should also be on the lookout for corresponding changes to the EDD's PFL pamphlet, and ensure that they're using the most recent version.
- Organ and Bone Marrow Donation Leave: As a reminder, employees employed for at least 90 days may take up to five business days of paid leave during any one-year period to donate bone marrow, and may take up to 30 business days of paid leave during any one-year period to donate an organ. But, as of 2020, under Labor Code § 1510, employers must grant an additional unpaid leave of absence, up to 30 business days during a one-year period, for the purpose of organ donation. So if your employee handbook has been sat around gathering cobwebs, make sure your Organ and Bone-Marrow Donation Leave is up to date.
- Victims' Protected Time Off: The last ingredients to add to the cauldron of Leave Policy amendments—Labor Code Sections 230 and 231—prohibit discrimination or retaliation against employees for taking time off who are victims of domestic violence, sexual assault, or stalking. Effective January 1, 2021, this protection will be expanded to include other crimes or abuses "that caused physical injury or that caused mental injury and a threat of physical injury" and "a person whose immediate family member is deceased as the direct result of the crime," regardless of whether anyone was arrested, or whether the crime was ultimately charged or resulted in a conviction.
Forego The Haunted House For Lactation Accommodation Spaces
It's been nearly a year now, but some companies still struggle with implementing California's lactation law updates. As of January 1, 2020, employers have been required to provide a lactation space that has a lot more specifications than the spooky Halloween closet-type rooms many nursing employees were relegated to in the past. The new law requires that a lactation space be (a) not a bathroom, (b) close to the employee's work area, (c) shielded from view, (d) free from intrusion while the employee is lactating, (e) safe, clean, and free of hazardous materials, (f) contain a surface to place a breast pump and personal items, (g) contain a place to sit, (h) accessible to electricity or alternative devices (e.g., extension cords, charging stations) needed to energize a breast pump, and (i) accessible to a sink with running water and a refrigerator suitable for storing milk.
Notably, California's lactation law also requires employers to develop and implement a written policy which must appear in the employer's handbook or policies, and must be distributed to new hires and to employees who ask about or request parental leave rights. No time like the season of change to check and see if your handbook and onboarding materials are compliant with this relatively recent update.
What's A Hotter Fall Trend Than Tie-Dye? Remote Work Policies!
And last but not least, no discussion of potential policy updates in 2020 would be complete without revisiting remote work policies. Since we last wrote about remote working, a large part of the California workforce has moved to working from home this year and that doesn't look like it's changing anytime soon. So employers should make sure they don't Fall behind by ensuring they have sound remote working policies and practices, including addressing California specifics on timekeeping practices, expense reimbursements, and reasonable accommodations.
Seyfarth has a Remote Work team that can answer any questions you have, inside and outside California, as you continue to weather the changes this season.
Not every change in the law requires a new handbook, but as we move our lives back indoors (did we ever leave this summer?!), why not curl up under a blanket with your favorite read—your employee handbook—and make sure you're set with the change in seasons. There aren't enough Fall puns to cover everything your handbook should in this one post, so please get in touch with your favorite Seyfarthian to ensure your handbook won't turn into a pumpkin.
Edited by Coby Turner
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.