The end of 2020 was not the end of the California Legislature’s focus on employment-related legislation. Just two months into the new year, the Legislature has already introduced several bills addressing the workplace that could impact employers who still may be implementing coronavirus-related legislation. This article discusses two such bills on the horizon that employers will want to follow as they work their way through the Legislature.
AB 1256 – Employment Discrimination and Cannabis Screenings
California employers are quite familiar with existing California law prohibiting various employment practices that discriminate on certain protected bases, such as sex, race, color, religion, ancestry, or national origin, to name a few. However, current law does not prohibit an employer from making employment-related decisions due to the presence of cannabis in a drug screening test.
AB 1256 seeks to address that lack of prohibition and minimize the role of urine testing for cannabis in the employment context. If passed, it would add Section 52.8 to the Civil Code and would prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment on account of the fact that a drug screening test has found that person to have tetrahydrocannabinol (“THC”) in their urine. The new law would provide an individual who has suffered employment discrimination due to the presence of THC in a urine drug screen a private right of action to pursue damages, injunctive relief, and reasonable attorneys’ fees and costs.
The bill still allows for employers to conduct a screening test for the presence of THC if (1) the employer is required to conduct that test by federal law or regulations; (2) the employer would lose a monetary or licensing-related benefit for failing to screen; or (3) employment is in the building and construction trades.
AB 1179 – Paid Backup Childcare
The Healthy Workplaces, Healthy Families Act of 2014, embodied in Labor Code Sections 245-249, requires employers of all sizes to provide paid sick days to eligible employees, among other requirements. Eligible employees who work in California for 30 or more days are eligible to accrue paid sick days as of the date their employment begins, at the rate of one hour for every 30 hours worked. Employers may limit an employee’s use of paid sick days to 24 hours or three days in each year of employment, calendar year, or 12-month period.
The global pandemic has brought issues of childcare for working parents to the forefront, especially as childcare centers and schools remain closed and employees exhaust their available sick leave. The Legislature introduced AB 1179 ostensibly to alleviate the burden on working parents by requiring “paid backup childcare” as a direct benefit to eligible employees, but in a manner that potentially stands to further burden employers already grappling with emergency coronavirus legislation and other business obstacles.
The Legislature declared that parents with children under 14 years of age make up almost one-third of the country’s workforce. Prior to the pandemic, the Legislature estimated that the average working parent missed eight days a year due to childcare issues. The pandemic has only exacerbated these issues and led to an increased need for additional childcare, notwithstanding the extended family and sick leave benefits now available under federal and California law.
AB 1179 would apply to employers with 1,000 or more employees, as well as state and local municipalities. It would not apply to employees covered by a valid collective bargaining agreement that offers similar benefits, to employees in the construction industry covered by a collective bargaining agreement providing for regular hourly pay of not less than 30% of the state minimum wage, certain airline employees, or government retirees receiving retirement benefits.
AB 1179 would enable eligible employees to accrue paid backup childcare benefits at the rate of not less than one hour per every 34 hours worked, beginning at the commencement of employment. Covered employers may provide the backup childcare benefit by (i) contracting with a licensed childcare provider and providing direct payments to the licensed provider for the hours used by the employee; (ii) directly paying a qualified backup childcare provider upon receipt of an invoice detailing the number of hours used by the employee; or (iii) reimbursing the employee for up to 60 hours for backup childcare paid by the employee. Or, covered employers could frontload that 60 hours and make it available for use at the beginning of each year of employment. The bill does not require employers to provide additional paid backup childcare benefits under the new law if the employer has a paid childcare policy that makes available an equivalent amount of paid childcare benefits under the same conditions as set forth in the bill.
If this legislation becomes law, accrued paid childcare shall carry over to the following year of employment, but an employer may limit an employee’s use of accrued paid backup childcare benefits to 60 hours in each year of employment, calendar year, or 12-month period. Accrued, but unused, paid childcare benefits are generally not paid out upon separation of employment.
Importantly, the legislation would also impose a three-year recordkeeping requirement and a requirement that information regarding an employee’s available paid backup childcare benefits be set forth on a wage statement or other writing provided on designated pay days.
Both of these bills have yet to be referred to committee or the subject of public debate. If the bill becomes law as it is currently drafted, AB 1179 would take effect beginning January 1, 2022. Large employers potentially subject to this bill should monitor its progress, while also reviewing existing childcare benefits for employees to assess what impact, if any, AB 1179 may have on a company’s operations.
Employers of all sizes who utilize urine drug screenings for THC should follow AB 1256 and consider its potential impact on existing policies if it becomes law. For instance, as currently framed, the legislation would not appear to encompass blood tests for THC which may present interesting additional issues that employers may wish to consider.
Employers should stay apprised of these and other pieces of legislation that, if signed into law, may impact the ever-changing legal landscape in California.