by the firm Wilson Turner Kosmo
Last week the law firm Wilson Turner Kosmo sent out a list of pending legislation. In fact, the firm reported that the California Legislature was quite active, introducing 2,369 bills for the 2021 Legislative Session, including approximately 80 employment related bills. The impacts of COVID-19 are still being felt to the extent many bills are COVID-19 specific. The following two bills that were introduced are worth following. And remember, this is pending legislation, not law.
Presumption of COVID-19 Retaliation, and Increased Cal-OSHA Enforcement of Safety Issues (SB 606)
While California law presently precludes retaliation against an employee who discloses certain COVID-19-related information, new Labor Code section 6409.7 would create a rebuttable presumption of retaliation if the employer takes an adverse action against an employee who does any of the following: (a) discloses a positive test or diagnosis resulting from exposure at the place of employment or worksite or of a communicable disease; (b) requesting testing as a result of exposure at the place of employment or worksite; (c) requesting personal protective equipment that is reasonable under the circumstances; or (d) reporting a possible violation of an occupational safety or health standard, order, special order or regulation. Notably, while the bill references COVID-19 protections, these retaliation provisions referencing exposure to “a communicable disease” or violation of any occupational health or safety order suggests it may apply much more broadly.
This bill would also expand Cal-OSHA’s enforcement power in two respects. First, it would authorize Cal-OSHA to issue a citation to an “egregious employer” (as defined) for each willful violation, with each employee exposed to that violation to be considered a separate violation for purposes of the issuance of fines and penalties. Second, regarding employers with separate places of employment, Cal-OSHA could issue a citation or seek a restraining order regarding an employer-wide written policy or practice that violates the Labor Code or Health and Safety Code.
This bill would create a rebuttable presumption that a written employer policy or practice that violates the Labor Code or Health and Safety Code exists at all places of employment for purposes of issuing citations.
Right of Recall for Certain Employees Laid Off Due to COVID-19 (AB 1074)
Entitled the Displaced Janitor and Hotel Worker Opportunity Act, this bill would expand statewide many of the provisions recently enacted in so-called Right of Recall or Worker Retention Ordinances passed in various municipalities (e.g., Los Angeles, San Diego, etc.). Accordingly, covered employers (as defined, but generally including later hotels, airport service providers and event centers) would need to notify laid off employees about job positions that become available that the employee previously held or is or could be qualified for. “Laid off employees” would mean employees employed for six months or more in the 12 months preceding January 1, 2020, and who was separated for non-disciplinary COVID-19-related reasons.
The employer would need to offer those positions based on a preference system outlined in the law and would need to allow at least business days for the employee to accept or decline the offer. Employers who decide to hire someone other than a laid-off employee would need to provide written notice to the laid-off employee identifying the reasons for the decision.
Employees would be permitted to file a complaint with the Division of Labor Standards
Enforcement if these requirements are not followed.
California’s Displaced Janitor Opportunity Act requires contractors and subcontractors who are awarded contracts or subcontracts to provide janitorial or building maintenance services to retain for a period of 60 days certain employees who were employed at that site by the previous contractor/subcontractor and to offer continued employment if the retained employees’ performance is satisfactory. This bill would essentially extend these protections to certain hotel workers.
This information was provided by the firm Wilson Turner Kosmo
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