Labor & Employment New Year Round-Up: What To Expect In 2022

• Published date: 29 December 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Health & Safety, Employee Benefits & Compensation, Arbitration & Dispute Resolution
• Law Firm: Jeffer Mangels Butler & Mitchell LLP
• Author: Mr Alexander L. Randolph, Barbra A Arnold, Brianna Frazier Earley, Elias Parisca, Marta M. Fernandez, Patricia DeSantis Belton, R. Scott Brink, Raef Cogan, Taylor N. Burras and Travis Gemoets

Expansions to the California Family Rights Act

Effective January 1, 2022, Assembly Bill 1033 (AB 1033) adds "parent-in-law" to the list of persons that an employee may take time off to care for, pursuant to the California Family Rights Act (CFRA).

AB 1033 also recasts the notice provisions of the small employer family leave mediation pilot program to:

• Require the Department of Fair Employment and Housing (DFEH) to notify an employee of the requirement for mediation prior to filing a civil action, when an employee requests an immediate right to sue alleging a violation of the CFRA
• Require the employee to contact the DFEH's dispute resolution division prior to filing a civil action

The small employer family leave mediation pilot program affects employers that employ five to 19 employees.

What this means for employers: Employers should review family leave policies to ensure they are compliant with AB 1033. Although the law adds a new category of person an employee may take time off to care for, it does not expand the total amount of leave an employee is entitled to take per 12 month period. For employers with five to 19 employees, AB 1033 provides a tool to delay (and potentially avoid) civil litigation by requesting mediation through the DFEH. Small employers should be aware of their ability to request mediation, and should consult with labor and employment counsel immediately upon receiving notice by a plaintiff or the DFEH that a plaintiff is seeking a civil lawsuit'the deadline to request a mediation is only 30 days from receipt of notice.

Changes to the Fair Employment and Housing Act

Effective January 1, 2022, Senate Bill 807 (SB 807) amends various statutes concerning the Department of Fair Employment and Housing (DFEH) procedures when enforcing California's civil rights law'notably, the Fair Employment and Housing Act (FEHA).

SB 807 includes the following changes:

• Tolls the deadline for the DFEH to file a civil action pursuant to the FEHA while a mandatory or voluntary dispute resolution is pending.
• Increases the length of time that employers must retain specified employment-related records and files to four years, from two years. The records include applications, personnel records membership records, and employment referral records and files, as well as personnel files of applicants or terminated employees who were denied employment or terminated, respectively.
• Authorizes the DFEH to appeal court decisions to an appropriate court of appeal, instead of being forced to petition for a writ of mandamus.

What this means for employers: SB 807's changes provide greater flexibility to the DFEH and add a longer record retention period for employers. Most notably for employers, the additional recordkeeping will require additional cost and oversight. Employers should review their current record retention policies and amend them as necessary. This also provides an opportunity to ensure that employers are retaining all the necessary records so that they do not face unnecessary penalties or subject themselves to avoidable liability. SB 807's tolling of the statute of limitations deadline provides additional leeway to employees who are seeking redress, and the authorization for the DFEH to appeal decisions grants it additional flexibility when pursing actions against employers.

COVID-19 Rehiring and Retention Requirements for Employers

Effective April 16, 2021, Senate Bill 93 (SB 93) requires employers in certain industries, including hotels with 50 or more guest rooms, to notify former employees laid off due to COVID-19 about job openings for which the former employees are eligible within five days of establishing the open position; they must offer the open position to laid-off employees based on a preference system (for example, seniority while employed). SB 93 also requires that if an employer declines to recall a laid-off employee based on lack of qualifications and hires someone else, that employer must provide the laid-off employee written notice within 30 days detailing the specific reasons for the employer's decision. These provisions are set to expire on December 31, 2024.

Under SB 93, employers are required to retain certain records regarding laid-off employees, including records of communications regarding offers of employment, for at least three years. The bill authorizes employees to file a complaint with the Division of Labor Standards Enforcement against the employer, and grants the Division the power to force an employer to hire/reinstate the employee, award back pay, and confer civil penalties on the employer.

The bill also contains a collective bargaining agreement waiver provision, providing that the waiver of recall rights must be expressly stated in the collective bargaining agreement.

SB 93 does not create a private right of action; the Division of Labor Standards Enforcement has sole jurisdiction to enforce its provisions. However, employers remain susceptible to liability for violations and the punitive enforcement provisions included in the law.

What this means for employers: Employers subject to SB 93 must create processes and procedures for complying with the new law. Employers with collective bargaining agreements should review the agreements and, if they desire at the next opportunity, negotiate an express waiver of the recall rights set out in SB 93.

Equal Employment Opportunity Commission Determines That COVID-19 Can be a Disability

On December 14, 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding COVID-19. The EEOC found that COVID-19 can be'but is not always' considered a "disability" under Title I of the Americans with Disabilities Act (ADA).

The EEOC analyzed whether COVID-19 constituted a disability under the ADA in the same manner as it analyzes whether any other medical condition is a disability. As a reminder, persons may be considered disabled under the ADA if they have: an "actual" disability, a "record of" a disability, or are "regarded as" having a disability.

The EEOC provides that whether an employee's COVID-19 symptoms constitute an "actual" disability is a fact-intensive question that can only be determined on a case-by-case basis. The question that must be answered is: are the employee's COVID-19 symptoms a "physical or mental" impairment that "substantially limits one or more major life activities"?

The EEOC determined that symptomatic COVID-19 is a physical or mental impairment, and thus, employers must determine whether a particular employee's COVID-19 symptoms substantially limits major life activities. To aide employers, the EEOC provides a few examples:

• "An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee's doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities"
• "An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking."
• "An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others."

Compare the above an examples with an individual's COVID-19 symptoms that do not substantially limit a major life activity:

• "An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness."

The EEOC made explicitly clear that COVID-19 is not always an actual disability under the ADA. However, there remains significant gray area in which it is not clear whether an employee's COVID-19 symptoms constitute a disability under the ADA. Based on the examples provided, symptoms that are synonymous with a cold or flu will not be considered a disability, while symptoms beyond that are more likely to be considered a disability.

Whether or not an employer regards an employee as having a COVID-19 disability is also viewed under the broader context of the ADA. Therefore, if the employer subjects an employee to an adverse employment action because the person has COVID-19, or the employer mistakenly believes the employee has COVID-19, the employer will have regarded the employee as disabled unless the COVID-19 symptoms are both transitory and minor.

What this means for employers: The updated guidelines highlight the importance for employers to have COVID-19 protocols in place. Those protocols, in addition to helping foster a safe working environment, will help ensure that employers do not create unnecessary liability for themselves. Employers must also be mindful of taking adverse employment actions against employees who have COVID-19 and are experiencing symptoms. Employers should consult with labor and employment lawyers experienced in handling ADA claims prior to taking such adverse employment actions. Here is a link to the EEOC's guidance on the topic.

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