Highlights of the Cal/OSHA and California Employment Law Summit

This blog was originally posted on 31st October, 2023. Further regulatory developments may have occurred after publication. To keep up-to-date with the latest compliance news, sign up to our newsletter.

AUTHORED BY CORINE LAURIJSEN, SENIOR REGULATORY COMPLIANCE SPECIALIST, COMPLIANCE & RISKS

Cal/OSHA and Employment Law Summit

The first Annual Cal/OSHA and California Employment Law Summit, held on 16 October 2023, in Emeryville (CA), was organized by law firm Conn Maciel Carey (CMC) with three panels on California law updates.

CMC’s OSHA & Workplace Safety Practice Group is focused exclusively on workplace safety legal issues, and their Labor & Employment Practice Group represents employers in all aspects of the employment relationship.

Highlights

Panel discussions covered the following topics:

Cal/OSHA Legislative, Regulatory, and Enforcement Update
Workplace Violence Prevention
California Employment Law Update

Cal/OSHA Update

Heat Illness

In August, the California Occupational Safety & Health Standards Board (OSHSB) posted a revised draft (15-day Notice) of 8 CCR 3396 on Indoor Heat Illness Prevention. A 2nd 15-day Notice is expected in November 2023, and an OSHSB vote in Q1 of 2024. Employer requirements are a written prevention plan, training, and providing cool-down areas, additional rest periods and acclimatization.

Lead

The OSHSB is updating the lead standards for construction and general industry based on new understanding of lead health hazards. This proposal, in its 2nd 15-day Notice comment period, is designed to maintain employee blood lead levels (BLLs) below 10 μg/dl, a four times lower level than in the existing regulations. The OSHSB vote is also anticipated in Q1 2024.

Covid-19

On 15 December 2022, the OSHSB voted to adopt non-emergency COVID-19 Prevention Regulations. These regulations took effect on 3 February 2023 and will remain in effect for two years after the effective date, except for the recordkeeping subsections that will remain in effect for three years. The Covid-19 workplace notification requirements, based on AB 685 (2020) and amendment AB 2693 (2022), will expire on 1 January 2024.

A General Industry Infectious Disease Standard is in the works, expecting to replace the Covid-19 regulations. There is no timeline for release of a draft yet.

2024 Cal/OSHA Forecast

Continued focus on workplace violence
Continued focus on heat illness (Cal/OSHA Heat Illness Special Emphasis Program)
Warehouse industry to be subject of a new Cal/OSHA Special Emphasis Program
Walking/working surfaces regulation

Workplace Violence Prevention

SB 553 Enacted

All employers are required to establish, implement, and maintain an effective Workplace Violence Prevention (WPV) Plan by 1 July 2024.

Exempted are, among others, teleworking employees and workplaces not publicly accessible, with less than 10 employees present at once, that comply with the Injury and Illness Prevention Program (IIPP) Regulations.

The WPV Plan may be part of the IIPP, but a separate document is recommended.

Create and maintain records of:

Workplace violence hazard identification, evaluation, correction, and investigations;
Violent incidents and incident investigations;
Training.

The new law specifically calls for the Division of Occupational Safety and Health to propose no later than 31 December 2025, and the Standards Board to adopt no later than 31 December 2026, standards regarding the required plan.

SB 428 Enacted

Collective bargaining representatives may seek Workplace Violence Restraining Orders on behalf of employees by 1 January 2025.

California courts can make orders to protect an employee from suffering unlawful violence or credible threats of violence* at the workplace. Employees cannot ask for Workplace Violence Protective Orders, only employers, and in the future collective bargaining representatives as well. Orders can also protect certain family or household members of the employee, other employees at the same or other workplaces of the employer and are enforced by law enforcement agencies.

*Credible threat of violence is intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family which includes following/stalking or making harassing calls/sending harassing messages by phone, mail, or e-mail over a period of time (even a short time).

Employment Law Update (Entry into Force on 1 January, 2024)

SB 497 Enacted

Creates a presumption of retaliation if an employee is disciplined or discharged within 90 days of a protected activity, and also makes an employer liable for a civil penalty not exceeding $10,000 per employee for each violation of this provision, to be awarded to the employee who was retaliated against.

SB 616 Enacted

Expands the minimum amount of paid sick leave from 3 to 5 days (40 hours) and increases the accrual threshold from 6 to 10 days (80 hours).

SB 699 Enacted

Reinforces CA law prohibiting non-compete agreements and provides employees with the right to seek injunctive relief and civil penalties if forced to sign a non-compete agreement.

AB 1076 Enacted

Makes it unlawful to include a non-compete clause in a CA employment contract and also requires employers to notify employees that a previously signed non-compete agreement is void.

AB 2188 Enacted

Makes it unlawful for employers to discriminate against a person in hiring, termination, or any other term or condition of employment, or otherwise penalize a person based on either:

a. Person’s use of cannabis off-the-job, away from the workplace;

b. An employer-required drug screening test that found the person to have non-psychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.

Exemption: employees in building and construction trades.

SB 700 Enacted

Makes it unlawful for employers to request information from an applicant for employment relating to the applicant’s prior use of cannabis.

SB 848 Enacted

Entitles employees to a 5-day leave of absence for a reproductive loss (miscarriage, failed surrogacy, stillbirth, unsuccessful “assisted reproduction” or failed adoption)