After months of chaos, at 1:30 a.m. on Tuesday morning the California Legislature concluded what could be considered the most tumultuous legislative session in recent history. Not surprisingly, some of the most controversial issues were tackled during the final weeks and days of the session. While legislative leaders called upon their respective houses to limit the bill packages to COVID-19 related issues, the final hours of session were dominated by fights over job-protected leave, utility rates, and new packaging mandates.
As in most years, we won some and we lost some. However, the game is not over and we are optimistic that the Governor will veto the most egregious, by our analysis, bills to the California citrus industry.
Let’s start with the good news.
AB 2043 by Assembly Member Robert Rivas would have, among other things, allowed for union representatives to conduct COVID-19 related outreach at Ag operations on behalf of CalOSHA. Had it not been for CCM’s proactive engagement, AB 2043 would have likely passed in its original form. After several weeks of productive discussions, however, the author agreed to our amendments and we moved our position from opposed to support. Now, the bill simply codifies existing CalOSHA guidelines for Ag employers to protect workers against COVID-19 and requires CalOSHA to conduct its own educational outreach to farmer workers about best practices to prevent COVID-19.
This same proactive approach led Senator Allen to amend his packaging bill, SB 54, to exclude the types of packaging materials used in the citrus industry. Other Ag commodities would have been impacted, however, and ultimately the bill failed to get enough votes in the Assembly.
Finally, AB 1659 by Assembly Member Bloom was introduced in the final week of the session and would have substantially increased utility rates to fund unrelated programs. The bill was stopped in the Assembly after a major effort was launched to defeat the bill. We thank our members who contacted their Assembly Members and Senators about the impact this bill would have had to their operations.
Unfortunately, the good news ends there.
We are disappointed that SB 1102 by Senator Monning is now headed to the Governor’s desk. SB 1102 would require H-2A employers to compensate employees at their regular rate of pay for time spent being transported from employer-provided housing to a worksite. The California Supreme Court has ruled that travel time is not compensable provided that transportation is voluntary. SB 1102 not only interferes with ongoing litigation, it would shorten the amount of actual working hours before overtime pay kicks in.
CCM is communicating with the Governor’s office on this bill and will soon be asking our members to submit letters urging a veto.
The legislature also passed SB 86 (Durazo) which would require the Department of Pesticide Regulation (DPR) to prepare quarterly reports containing information regarding granular chlorpyrifos use, monitoring, and exposure.
We argue that the bill is unnecessary as DPR already compiles annual reports on all pesticide use in California. This is yet another incremental approach by the legislature to usurp DPR’s regulatory authority and the scientific process that governs pesticide use. While SB 86 does not immediately affect growers’ ability to use granular forms of Chlorpyrifos, we are concerned that the reporting requirement would put a spotlight on the product that can easily be taken out of context.
We are asking the Governor to veto SB 86.
The legislature also passed a number of policy measures that will have an impact to agricultural employers. We anticipate the following bills will be signed by the Governor.
SB 1159 (Hill/Daly): Workers’ compensation: COVID-19: critical workers (Opposed)
SB 1159 would through January 1, 2023 define “injury” for purposes of workers’ compensation to include illness or death resulting from COVID-19. The bill would create a disputable presumption that the injury arose out of and in the course of the employment and is compensable. While the presumption is automatic for specified employees, for non-specified employees including those in agriculture, the presumption is triggered when an outbreak exists.
The bill defines outbreak as occurring when, if there are 100 employees or fewer at a specific place of employment, 4 employees test positive during a 14-day period. If there are 100 or more employees at a place of employment, an outbreak occurs when 4% of employees test positive in a 14-day period. When the employer knows or reasonably should know that an employee has tested positive for COVID-19, the employer must report specified information to their claims administrator in writing within three business days.
The bill would also make a claim relating to a COVID-19 illness presumptively compensable, after 45 days (30 days for specified law enforcement and heath care industries), rather than 90 days. The bill becomes effective immediately upon signature by the Governor.
SB 1383 (Jackson): Unlawful employment practice: family leave (Opposed)
SB 1383 would require any employer with 5 or more employees to provide up to 12 weeks of job protected leave to an employee to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner. The bill would require an employer who employees’ both parents of a child to grant leave to each employee.
The leave would be enforced through a private right of action that includes compensatory damages, injunctive relief, declaratory relief, punitive damages, and attorney’s fees. Any employee who believes an employer did not properly administer the leave, interfered with the leave, or denied the leave, can face litigation.
For employers with 50 or more employees, SB 1383 will expand the amount of protected leave an employee may take to 24 weeks in a 12 month period by changing the definition of family member under the California Family Rights Act (CFRA) to be different than the Family and Medical Leave Act’s (FMLA). Because FMLA and CFRA’s qualifying requirements no longer conform with each other, an employer would be required to provide both forms of leave.
SB 1383 would require a public or private employer or representative employer that receives a notice of potential exposure to COVID-19 to provide specified notifications to employees within one business day of the notice of potential exposure. The bill would require the employer to notify all employees and their exclusive representative and the employers of subcontracted employees, who were on the premises at the same worksite as a qualifying individual, as defined, within the infectious period, as defined, that they may have been exposed to COVID-19.
AB 685 (Reyes): COVID-19: imminent hazard to employees: notification: serious violations (Opposed)
AB 685 would require an employer or representative employer that receives a notice of potential exposure to COVID-19 to provide specified notifications to employees within one business day of the notice of potential exposure. The bill would require the employer to notify all employees who were on the premises at the same worksite as a person who tests positive within the 14-day infectious period they may have been exposed to COVID-19.
The bill would require the State Department of Public Health to make specified information on an outbreak, as defined, occurring at a job site publicly available on its website. The bill would require local public health departments and the division to provide a link to this page on its internet websites.