Saying Goodbye To A Traumatic 2020: What Employers Need to Know

Abimael (“AJ”) Bastida

The year 2020 has been nothing less than a series of traumatic events for many.  No one was prepared for the changes the year brought and the adjustments that were required as a result—remote working and schooling, safe social distancing policies and procedures, mass layoffs and loss of business, and more.  Given everything that has transpired this year, it is safe to say, we are all eager to say goodbye to 2020.  As we enter 2021 however, there are a few things employers must keep in mind.

Remote Working Will Be The New Norm For Many

There is a sense in the workforce that remote working is here to stay.  Many of the tech giants of Silicon Valley have embraced permanent full-time or part-time remote working policies.  It is likely many other employers will follow.  Similarly, surveys show remote work will become a standard option in many industries.  This change will require employers to adjust in multiple ways.

Who Covers the Cost of Working From Home

An employer is responsible for the expenses and costs of doing business, and therefore must provide its employees with the necessary tools and services for them to perform their tasks. 

In California, employers are required to reimburse all necessary business expenses incurred by their employees whether incurred at the workplace or at home. 

Employers should therefore continually review expenses incurred by their employees and keep an eye on applicable wage and hour laws to make sure they are complying with the necessary reimbursement laws as they pertain to working from home.

Keeping Track of Your Employees Working From Home

Having employees working remotely means employers have to keep track of their employees’ productivity and time remotely.  No employer wants to pay wages for time that an employee is not working, but how does the employer keep track of hours an employee works from home?

Earlier this year, the Department of Labor, provided some clarification in its Field Assistance Bulletin 2020-5.  Employers are required to pay their employees for all hours worked, including work not requested but allowed and work performed at home.  Moreover, if the employer knows or has reason to believe that an employee is performing work, the time must be counted as hours worked.  However, if an employee fails to report his or her hours worked through the employer’s time tracking procedure, the employer is generally not required to investigate further to uncover unreported hours.

It is critical employers establish procedures to keep track of all hours worked by their employees and to capture time that the employers have reason to believe their employees incurred working.

Safety and Social Distancing in the Workplace

For those employers that will have their workforce return to work in the workplace, things will not be as they used to be pre-pandemic.  During the coming year, and possibly beyond, employers must establish procedures regarding workplace safety and social distancing.

COVID-19-Related Notice Obligations

AB 685, effective January 1, 2021, prescribes notice requirements for employers in the unfortunate event of a COVID-19 exposure in the workplace.  These include, among others, the requirement for employers to provide written notice (in English and in the language understood by the majority of their workforce) to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite of someone who has a laboratory-confirmed case of COVID-19, a positive COVID-19 diagnosis from a licensed health care provider, a COVID-19-related order to isolate provided by a public health official due to COVID-19.  In addition, an employer must provide all employees who may have been exposed with information regarding COVID-19-related benefits to which they may be entitled.

AB 685 also imposes reporting requirements to local health authorities in the event of a COVID-19 outbreak, and grants the Division of Occupational Safety and Health of California (Cal OSHA) both the authority to shut down worksites deemed to be an “imminent hazard” due to COVID-19, and issue citations to employers.

COVID-19 and Workers’ Compensation

SB 1159, which went into effect in September 2020, created two new rebuttable presumptions that an employee’s illness related to coronavirus is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met.  This new law also requires certain employers to report information to their workers’ compensation carrier once they know or reasonably should know an employee has tested positive for COVID-19 under the assumption the employee has been onsite in the 14 days prior to the employee testing positive.

Other new employment laws for 2021 that California employers should take note include the following:

Safety and Mandated Handwashing

AB 1867, which also went into effect in September 2020, requires all employees working any food facility to be permitted to wash their hands every 30 minutes and additionally as needed.

California Family Rights Act

SB 1383, effective January 1, 2021, does away with the California New Parent Leave Act and the old California Family Rights Act, and instead implements a new California Family Rights Act (CRFA).  The new CRFA will cover any employer with five or more employees, and, among other requirements, will mandate employers to grant employees up to 12 workweeks of unpaid protected leave during any 12-month period 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.

Appointment of Directors: Underrepresented Communities

AB 979, went into effect in September 2020, builds on SB 826 (passed in 2018), which mandated any publicly held corporation with principal executive offices in California to place at least one female director on its board by December 2019.  AB 979 requires, publicly held corporations (domestic of foreign) with principal executive offices in California to have a minimum of one director from an underrepresented community by December 31, 2021.  A “director from an underrepresented community” is defined in AB 979 as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.

And, no later than December 31, 2022, a California-based publicly held domestic or foreign corporation must have a minimum of three directors from underrepresented communities, if its number of directors is nine or more; a minimum of two directors from underrepresented communities, if its number of directors is more than four but fewer than nine; or a minimum of one director from an underrepresented community, if its number of directors is four or fewer.

Significant financial penalties may be imposed on companies that do not comply with these requirements.

Pay Data Collection and Reporting

SB 973, effective January 1, 2021, requires California private employers with 100 or more employees to submit a pay data report to the Department of Fair Employment and Housing (DFEH) by March 31, 2021, and annually thereafter.

Key Takeaway for Employers: Stay Alert

2021 is around the corner and we are eager to start fresh and put the pandemic behind us.  However, the implications of 2020 will not go away and employers will have to adapt to new and changing regulations from the federal, state, and local authorities.  It is best for employers to take action now, review their policies, and keep up to date with the changing requirements.

About the author Abimael (“AJ”) Bastida

AJ represents both plaintiffs and defendants in civil cases. His clients include individuals, small businesses, and large corporate entities. AJ takes great care with each client, listening attentively to the details of every matter, to understand what the client needs.