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Is There Change on the Horizon for Two Key Employment Statutes? Pending Employment Legislation to Watch
Nearly all California employers are impacted by, and should be familiar with, the provisions of the California Family Rights Act (“CFRA”) and the Fair Employment and Housing Act (“FEHA”). There are currently bills working their way through the Legislature that would modify these key statutes.
AB 1949: Modifying CFRA to Include Bereavement Leave
The CFRA provides eligible employees with up to 12 weeks of unpaid protected leave during any 12-month period to care for their own serious health condition, to care for a family member with a serious health condition, or to bond with a new child.
This bill would amend CFRA to prohibit employers from denying a request from an eligible employee (defined as a person employed by the employer for at least 30 days prior to the commencement of the leave) to take up to 5 days of bereavement leave upon the death of a family member, which includes the employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. The employee would be required to take the 5 days of leave within 3 months of the date of the family member’s death.
Leave under this bill would be unpaid, but, where an employer already has a bereavement leave policy in place, the CFRA bereavement leave would be taken pursuant to that policy. Where an employer does not have an existing bereavement leave policy (or the existing policy provides for less than 5 days of paid bereavement leave), the bill would require that employees be allowed to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.
Under this bill, employers could require employees requesting bereavement leave to provide documentation of the death of a qualifying family member, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from various sources.
A note for employers with represented employees – the new CFRA bereavement leave provision would not apply to employees who are covered by a valid collective bargaining agreement that already provides for bereavement leave.
AB 2188: Modifying FEHA to Include Off the Clock Cannabis Use as a Protected Characteristic
The FEHA prohibits discrimination, harassment, and retaliation in the workplace on the basis of various specified protected characteristics, including race, religion, disability, sex/gender, age, and sexual orientation.
Beginning on January 1, 2024, this bill would amend the FEHA to also make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, for (1) the person’s use of cannabis off the job and away from the workplace; and/or (2) the results of an employer-required drug screening test that found the person to have nonpsychoactive cannabis metabolites in their urine, hair, blood, or bodily fluids.
This prohibition is based on the Legislature’s findings that, when most drug tests for cannabis are conducted, the results show only the presence of nonpsychoactive cannabis metabolites. These nonpsychoactive metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks. As science has improved, employers now have access to tests that do not rely upon the presence of nonpsychoactive metabolites and instead, for instance, measure an individual employee against their own baseline performance and/or identify the presence of THC (the chemical compound in cannabis that can indicate impairment and cause psychoactive effects) in an individual’s bodily fluids.
This bill would not prohibit employers from taking action against a person based on “scientifically valid pre-employment screening conducted using methods that do not screen for nonpsychoactive cannabis metabolites.” The bill does not provide any insight into specific testing that would be permissible under this standard, but this provision seems aimed towards ensuring that employers rely upon the more sophisticated testing available even in pre-employment testing.
The bill would also exempt certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and employees in positions that require a federal background investigation or clearance. Similarly, the bill would not preempt state and/or federal laws requiring applicants or employees to be tested for controlled substance.
LCW will continue to monitor and report on any developments with these and other employment-related bills.