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    New Laws Impacting California Employers for 2024 – Part 1

    Welcome to my annual summary of new laws in California which may impact employers in the new year. This list is not exhaustive, but rather a summary of those laws which may have the most impact.

    SB 616 beefs up statewide sick leave rules. The new statewide minimum sick leave for full-time employees increases from 24 hours to 40 hours. Full-time and part-time employees must accrue a minimum of 1 hour sick leave per 30 hours worked. Employees may use their available sick balance after 90 days of employment. Employers cannot restrict employees from using less than 40 hours accrued sick leave per year. Employers may limit the use of sick time to 40 hours for each calendar year, year of employment, or 12-month period. The cap on carrying over accrued sick time increases from 40 hours to 80 hours. Accrual will stop at 80 hours and will not accrue again until the cap falls below 80 hours. Employers must carryover a minimum of 40 hours of any unused, accrued sick leave to the following year. Employees are entitled to paid sick days if they work in California for the same employer for 30 or more days within a year from the start of their employment. Employers must provide written notice to employees about the amount of sick leave they have available, i.e. noting the current balance on pay stubs. If an employer uses a custom accrual calculation, the accrual must provide: 24 hours of sick leave by the 120th day of employment and an additional 16 hours of sick leave by the 200th calendar day of employment (for a total of 40 hours).

    AB 2188 provides new protections for employees who use recreational marijuana. AB 2188 amends the Fair Employment and Housing Act by making it unlawful for an employer to discriminate against an applicant or employee for (1) the use of marijuana “off the job and away from the workplace” and (2) for an employer-required drug screening test that finds the person to have nonpsychoactive cannabis metabolites in their system.

    Tetrahydrocannabinol (“THC”) is the psychoactive chemical in cannabis that induces a high in the user. Non-psychoactive cannabis metabolites are the components that are stored in the body after the THC is metabolized and simply indicate that marijuana has been consumed sometime in the last few weeks.

    Employers are prohibited from holding test results for non-psychoactive cannabis metabolites against an applicant or employee if all the test reveals is evidence of past marijuana use. The general intent of employment-related drug testing is to test for impairment on the job and/or at the worksite, not for long-term use. This common test for marijuana use can no longer be used for pre-employment drug screening or be the basis for discipline or termination of an employee. However, applicants and employees can still be disciplined or terminated based on test results that show (1) present impairment and/or (2) the presence of the psychoactive chemical compounds of marijuana.

    There are a few important exemptions to this new law. Employees in the construction and building industries and those hired for positions that require federal background and clearance checks are excluded from the new law.

    Employees still may not possess, be impaired by, or use marijuana on the job. Moreover, all employers maintain the right to maintain a drug-free and alcohol-free workplace as provided under California Health and Safety Code section 11362.45(f).

    Other tests used to focus on the presence of psychoactive components of marijuana (THC) in an individual’s bodily fluid and/or impairment tests against the employee’s baseline performance are permitted.

    SB 731 creates a comprehensive process for an individual to electronically seal conviction and arrest records in the state of California once a person has fully completed their sentence and successfully gone four years without further contact with the justice system. Records of arrests that didn’t result in a conviction would also be electronically sealed.

    SB 848 entitles an employee who has worked for an employer for at least 30 days to unpaid leave up to five days for a “reproductive loss event,” defined as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The law limits the amount of reproductive loss leave to a maximum of 20 days within a 12-month period.  Thus, although an employee may be subject to multiple reproductive loss events in a 12-month period, an employer is not required to provide more than 20 days of reproductive loss leave. Employers may not retaliate against any employee for requesting or taking leave for a reproductive loss. Employees must take the leave within three months of the reproductive loss events, but the leave need not be taken on consecutive days. Eligible employees may choose to use any accrued and available sick leave, or other paid time off, for reproductive loss leave.

    Please contact our Employment Law Group for further information and guidance.

    Part 2 of New Laws Impacting California Employers for 2024 will be following soon.

    AUTHORS

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    JoLynn M. Scharrer

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