Employment Law: Leaves, Cannabis, Retaliation, and Reproductive Health

Employment Law: Leaves, Cannabis, Retaliation, and Reproductive Health

Previously, we explored a few new employment laws impacting employers, including changes to minimum wage, new reporting and disclosure rules, and retirement plan requirements. If you would like to review those in further detail, you can click here. In this edition, we give you an update on several other 2023 employment-related laws you should be aware of.

New Changes in Employee Leaves

Assembly Bill 1041 broadened existing leave laws. First, the bill amended the California Family Rights Act such that employees can take leave to care for a “designated person.” A designated person can be any person related by blood. It can also be any person who is like family to the employee, such as an unmarried partner. Employees have the flexibility to select this designated person when requesting leave under the CFRA. Employers can limit the employee’s designation to once a year. The bill also makes similar amendments to California’s paid-sick-leave law. Employees can now use paid sick leave to care for designated persons. A designated person for purposes of sick leave is any person identified by the employee at the time the employee requests paid sick days, so the definition is a bit broader than the definition used in the CFRA. But like the CFRA changes, employers may limit employees’ designations to once a year.

The state also enacted a law granting new bereavement-leave entitlements. Under Assembly Bill 1949, employers must grant eligible employees up to five days leave upon the death of a family member, within 3 months of death. If employers don’t already have a bereavement-leave policy, the bereavement leave may be unpaid. If employers have an existing paid bereavement-leave policy with less than five days of paid leave, employees are entitled to the existing paid leave days, plus an additional amount of leave to total five. The additional days may be unpaid. If employers have an existing unpaid bereavement-leave policy with less than five days of unpaid leave, employers must provide an additional number of days to total five.

Employers must permit employees to use other available leave balances to cover their absence, including paid sick leave. Notably, the bill safeguards against discrimination for using bereavement leave and requires that employers maintain confidentiality relating to the leave.

Cannabis Protections

The state also passed Assembly Bill 2188 to curtail workplace discrimination linked to off-duty cannabis use. Starting January 1, 2024, employers will be prohibited from discriminating against employees based on their cannabis consumption outside work hours. The bill does not preclude drug screening, but it restricts adverse actions based on tests that screen for non-psychoactive cannabis metabolites. So, for example, if an employee’s drug test comes up positive, employers will need to discern if the positive test is solely based on non-psychoactive cannabis metabolites. If so, then that result will not be enough to justify taking adverse employment action against the employee. Exceptions apply to certain trades and federal-background checks. State and federal laws on drug testing for specific jobs remain intact.

Retaliation Protections for Emergency Conditions

Under Senate Bill 1044, employers cannot take any adverse action against employees who refuse to report to, or leave, work if it’s within an emergency area. This protection is extended to employees who reasonably believe their workplace or worksite poses a threat to their safety—even if it is not actually in a designated emergency area. The legislation also ensures that employees, including those working for public entities, have the right to access their phones during emergencies. Employees must promptly notify their employers about the emergency condition that necessitated their departure or refusal to report to the workplace. This notification process was included to help keep employers informed and to ensure a relatively smooth workflow. The bill explicitly states these protections do not apply when emergency conditions no longer pose an imminent and ongoing risk.

Protections for Reproductive-Health Decision-Making

Finally, under Senate Bill 523, the Fair Employment and Housing Act extended protections against employment discrimination to a new protected category: reproductive-health decision-making. This includes an employee’s decision to use or access a particular drug, device, product, or medical service for reproductive health. The bill also safeguards privacy by forbidding employers from seeking reproductive-health information as a condition of employment or benefits.

If you need a more thorough analysis of these new laws, send us a note at info@cjattorneys.com and we will do a deep dive for you. Also, if you know of others that would like our updates, they may subscribe here:  https://cjattorneys.com/news/. If you do not want to receive these client updates, simply click the “Unsubscribe” link at the bottom of this newsletter.


Keith W. Carlson and Nima A. Jalali

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