The Department of Fair Employment and Housing (DFEH) updated the “Your Rights and Obligations as a Pregnant Employee” and “Family Care and Medical Leave and Pregnancy Disability Leave” posters. These publications inform employees of their rights under California’s Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL). Employers with five or more employees must post the notices at their California worksites. If employees work remotely, the notice may be delivered electronically. If 10% or more of the company’s workforce speak a language other than English, the notice must be posted in that language, which is available from the DFEH publications webpage.

“Your Rights and Obligations as a Pregnant Employee” Poster, 2022 »
“Family Care and Medical Leave Pregnancy Disability Leave” Poster, 2022 »
DFEH Publications Webpage »

The Department of Fair Employment and Housing (DFEH) revised the Certification of Health Care Provider, which is used for an employee requesting leave under the California Family Rights Act (CFRA). CFRA is California’s version of FMLA. It previously applied to employers with 50 or more employees. However, effective January 1, 2021, the law and its requirements apply to employers with five or more California employees. The law provides up to 12 weeks of unpaid leave for an eligible employee with a serious health condition (except for maternity related disability, which is covered by Pregnancy Disability Leave, or PDL), to care for a family member with a serious health condition, or for an employee to bond with a newly born or adopted child.

The certification form has been changed to reflect the revised definition of a family member, which was effective January 1, 2021, and includes the employee’s child, parent, parent-in-law, grandparent, grandchild, sibling and spouse. Child and parent include those satisfying the loco parentis status.

Employers should begin using the revised form immediately.

Revised “Certification of Health Care Provider,” 2022 »

Effective January 14, 2022, the Occupational and Health Standards Board issued revised regulations implementing Cal-OSHA’s COVID-19 Prevention Emergency Temporary Standards. The rules apply to all employees in all places of employment except worksites with one employee who has contact with no other persons, employees teleworking from a non-employer site and employees covered by the state’s Aerosol Transmissible Diseases Standard.

Employers must establish, implement and communicate a written COVID-19 Prevention Program. The policy may be integrated with the employer’s Injury and Illness Prevention Program (existing Cal-OSHA requirement). Required elements of the program include a procedure for employees to report COVID-19 symptoms and workplace hazards (without fear of retaliation); procedure for employees with medical conditions to request accommodations; provide information on COVID-19 testing access; process for screening employees for COVID-19 symptoms (which may include employees self-screening at home); evaluation of how to maximize ventilation with outdoor air, air filtration, air cleaning systems; process for correcting hazards and procedures for investigating COVID-19 cases in the workplace.

Within one business day of the date the employer knew or should have known of a COVID-19 case, the employer must provide written notice to all employees and contractors who were present at the same worksite within the high-risk period. The notice should not identify the case by name. The employer must make COVID-19 testing available during paid time at no cost to employees who had close contact. Close contact is defined as being within six feet of a COVID-19 case for 15 minutes or more in a 24-hour period. Tests must be approved for use by the FDA and include home kits if the test is not both self-administered and self-read by the employee.

Employers must also provide COVID-19 testing available to symptomatic employees who are not fully vaccinated. The cost of the test must be paid by the employer and the employee must be paid for the time spent taking the test.

If employees are not fully vaccinated, the employer must provide face coverings and the employees must wear them when indoors. Face covering for this purpose is defined as a surgical mask, medical procedures mask, a respirator (worn voluntarily) or a fabric mask of at least two layers. The mask requirement does not apply to an employee who is alone in a room or vehicle; while eating or drinking; or those who cannot wear a face covering due to a medical or mental condition (including hearing impairment). Those not wearing a face covering must be at least six feet from other persons unless they are fully vaccinated or test negative weekly.

Affected employers should work with outside counsel to establish and implement policies and procedures in compliance with the requirements.

Cal-OSHA COVID-19 Prevention Emergency Temporary Standards »

Beginning September 30, 2020, California employers with more than 100 employees were required to offer employees a qualified retirement plan (such as a 401(k)) or participate in the state-run retirement savings program known as CalSavers. The requirement applied to employers with 51 to 100 employees on June 30, 2021, and will apply to employers with five or more employees on June 30, 2022. For this purpose, employer size is based on the number of California-based employees reported on the Employment Development Department quarterly report.

Before the June 30, 2022 deadline, small employers must sponsor a qualified retirement plan or register with CalSavers. Under CalSavers, an employer must automatically enroll eligible employees in the retirement program with a contribution of at least 3% of earnings. New employees must be enrolled within 30 days of employment. Employees may opt out of or back into the program at any time.

CalSavers Employer Registration »

The Employment Development Department (EDD) recently announced that the 2022 employee contribution rate for State Disability Insurance and Paid Family Leave will decrease from 1.2% to 1.1%. The taxable wage base from which the contributions will be taken will increase from $128,298 in 2021 to $145,600 in 2022. The maximum weekly benefit increases from $1,357 to $1,540.

Employers should be aware of this change in rates and limits, and they should work with their payroll provider to adjust employee contributions.

EDD Announcement »

Signed into law in June 2019, the California Individual Health Coverage Mandate established a state individual mandate effective beginning 2020. The law requires California residents to maintain minimum essential coverage (MEC) or pay a penalty. In conjunction with this mandate, there is a reporting requirement for employers that provide self-insured MEC to residents.

Reporting for the 2021 coverage year is due March 31, 2022, to the California Franchise Tax Board. The state will accept copies of federal Forms 1095-B and 1095-C. Self-insured employers must report coverage for any California resident who had coverage for any portion of the calendar year 2021. Note that employers are only subject to these requirements if their carrier does not complete this reporting. Failure to report can result in a $50 per covered person penalty.

Similar to federal filing, electronic returns are required if filing 250 or more forms.

Franchise Tax Board, Reporting Instructions »

The San Francisco Health Care Security Ordinance (HCSO) requires covered employers to satisfy an employer spending requirement by making healthcare expenditures for their covered employees, among other reporting and notice requirements. The healthcare expenditure rate varies depending on the size of the employer and increases incrementally each year.

As of January 1, 2022, the healthcare expenditure rate for large employers with 100 or more employees increases to $3.30 per hour payable (up from $3.18 per hour in 2021). For medium-sized employers with 20 to 99 employees and for nonprofit employers with 50 to 99 employees, the expenditure rate will rise to $2.20 per hour payable (up from $2.12 per hour payable in 2021). Employers with fewer than 20 employees and nonprofit employers with fewer than 50 employees are exempt.

If an employee is a managerial, supervisorial or confidential employee earning $109,643 per year ($52.71 per hour) or more, that employee is exempt from the HCSO. This represents an increase from last year’s threshold of $107,991 per year ($51.92/hour).

All covered employers will be required to post the revised notice in all workplaces and job sites, when the poster becomes available

2022 HCSO Announcement »

On April 21, 2021, the San Francisco Board of Supervisors approved an ordinance waiving the annual reporting requirement for calendar year 2020 related to the San Francisco Health Care Security Ordinance (HCSO). This supersedes the previous guidance issued by the San Francisco Office of Labor Standards Enforcement on March 24, 2021, which postponed the reporting for at least six months.

As background, employers with 20 or more employees must meet a minimum healthcare spending requirement on employees working at least eight hours in the city or county of San Francisco. Normally, an employer must file a report detailing their compliance by April 30 for the previous calendar year. However, the annual report has now been waived for calendar years 2019 and 2020 due to COVID-19 and the administrative burden the report places on employers. Employers should continue to comply with the spending requirement and maintain documentation.

San Francisco Board of Supervisors Ordinance »
San Francisco Office of Labor Standards Enforcement HCSO Information »

On March 9, 2021, Gov. Newsome signed SB 95 into law, requiring employers to provide supplemental paid sick leave to eligible employees. The law applies to employers with 26 or more employees. Unfortunately, neither the new law nor subsequent guidance clarified which employees have to be counted toward the 26-employee threshold. If we look conservatively to how California administers their other laws, all employees working for the employer nationwide would be counted.

Employees are eligible for paid leave for the number of hours they typically work in a two-week period up to 80 hours. The leave allotment is in addition to any normal PTO, paid leave, or mandated safe and sick leave.

The reasons for leave are:

1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace.
2. The covered employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
6. The covered employee is caring for a family member, who is subject to an order or guidelines described in subparagraph A or who has been advised to self-quarantine, as described in subparagraph B. Family member for this purpose is defined as: child (biological, adopted, foster, stepchild, legal ward or a child to whom the employee stands in loco parentis); parent (biological, adoptive, foster, stepparent or legal guardian of an employee or the employee's spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a child); spouse; registered domestic partner; grandparent; grandchild; and sibling.
7. The covered employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Employees should be paid their normal rate of pay while on leave up to a maximum of $511 per day.

The law is effective retroactively back to January 1, 2021, and is in effect through September 30, 2021. Many counties and cities across the state of California have enacted their own COVID-19-related leave laws, which means that employers will need to make sure that their policies comply with both state and local laws. Remember, federal FFCRA emergency paid sick leave and expanded FMLA are currently optional for an employer. If an employee's leave qualifies under both state/local and federal, the employer would be able to receive a federal payroll tax credit.

Employers should update their leave policies, make adjustments to their payroll systems, post the required notice and communicate to employees as soon as possible.

California SB 95 »
Required Poster »
2021 COVID-19 Supplemental Paid Sick Leave FAQs »

The San Jose COVID-19 Paid Sick Leave Ordinance was originally effective April 7, 2020 and expired December 31, 2020. The ordinance is extended to June 30, 2021.

As a reminder, the law requires employers to provide paid sick leave to employees who are unable to work for one of the following reasons:

• The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19.
• The employee is caring for someone who is quarantined or isolated due to COVID-19.
• The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a health-care provider.
• The employee experiences symptoms of COVID-19 and is seeking medical diagnosis.
• The employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Employers who were required to provide leave under FFCRA were previously exempt. However, now that leave under FFCRA is optional for employers, the paid sick leave ordinance applies to all employers that meet the following two requirements:

• The employer is subject to the Business License Tax required by Chapter 4.76 of the Municipal Code, or maintains a facility within the boundaries of the City; and
• The employer is lawfully allowed to conduct business activities under the County of Santa Clara, state or federal health orders.

Employees are eligible only if they leave their residence to perform work and they have worked for the employer within the city of San Jose for at least two weeks.

Eligible full-time employees may receive up to 80 hours of paid sick leave up to a daily max of $511. Part-time employees may receive paid sick leave based on the average number of hours and pay rate for a two-week period.

Employers who were originally exempt because of FFCRA should update their leave policies and communicate eligibility to employees in compliance with the revised ordinance.

Paid Sick Leave Ordinance, Extended and Expanded »