Quick Hits
- Newly enacted AB 2499 expands the FEHA by making it unlawful to discriminate or retaliate against an employee for taking time off from work for jury duty or to comply with a subpoena or other court order as a witness in a judicial proceeding, or, if the employee is a victim (i.e., an individual against whom a “qualifying act of violence” has been committed) or has a family member who is a victim, for taking time off to obtain relief or for other related reasons, as enumerated in the law.
- Victims of “qualifying acts of violence” are provided with certain job-related protections under the law, including an entitlement to reasonable accommodation.
- Employees may use paid sick leave for time taken off for a purpose specified under this new law.
- Employers must provide employees with written “notice” of their rights under this new law.
Expansions to Protections Against Discrimination and Retaliation
AB 2499 makes it an unlawful employment practice, under the FEHA, to discriminate or retaliate against:
(a) an employee who is taking time off to serve on a jury;
(b) an employee, including an employee who is a victim, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding;
(c) an employee who is a victim, or who has a family member who is a victim, for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, “a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or … the family member of the victim”; or
(d) an employee who is a victim, or who has a family member who is a victim, from taking time off from work for any of a number of enumerated situations, including, but not limited to, seeking or obtaining medical attention, psychological counseling, or mental health services with respect to injuries caused by a qualifying act of violence, or seeking or obtaining services from a domestic violence shelter, program, or related services organization or agency as a result of a qualifying act of violence.
When taking time off with respect to (c) and (d) above, the employee should give the employer “reasonable advance notice,” unless such notice is not feasible. This new law also removes the twenty-five–employee threshold from provisions for victims of crime and abuse and, except as specified, applies its provisions to employers of one or more persons.
What Is a “Qualifying Act of Violence”?
The term “qualifying act of violence” now replaces the terms “crime” and “crime and abuse,” which were used in existing Labor Code Sections 230 and 230.1. The term “qualifying act of violence” includes domestic violence, sexual assault, stalking, or “[a]n act, conduct, or pattern of conduct that includes any of the following”: (i) “an individual caus[ing] bodily injury or death to another individual”; (ii) “an individual exhibit[ing], draw[ing], brandish[ing], or us[ing] a firearm, or other dangerous weapon, with respect to another individual”; or (iii) “an individual us[ing], or mak[ing] a reasonably perceived or actual threat to use, force against another individual to cause physical injury or death.”
Notably, the above-mentioned acts are considered to be “qualifying acts of violence,” regardless of whether there has been an arrest, prosecution, or conviction.
Expanded Definition of “Family Member”
Under this new law, the term “family member” will follow the FEHA definition, which includes an employee’s “child, parent, grandparent, grandchild, sibling, spouse, or domestic partner … or designated person,” and which is more expansive than the Labor Code’s definition.
Expansion of Reasonable Accommodation Eligibility
AB 2499 expands reasonable accommodation eligibility to include employees who are victims—or whose family members are victims—of “qualifying acts of violence.” Employers must reasonably accommodate these employees to ensure their safety while at work. AB 2499 specifically provides that reasonable accommodations may include the implementation of safety measures, including a “transfer, reassignment, modified schedule, [or] changed work telephone,” among other accommodations. An employer must engage in a timely, good-faith interactive process with an employee to determine effective reasonable accommodations, taking into consideration any “exigent circumstance or danger facing the employee or their family member.”
Regardless, an employer is not required to undertake an action that would constitute an undue hardship on the employer’s business operations, as defined by the FEHA. AB 2499 notes that “an undue hardship also includes an action that would violate an employer’s duty to furnish and maintain a place of employment that is safe and healthful for all employees as required by Section 6400 of the Labor Code.”
If an employee is provided with leave as a reasonable accommodation, and the absence would qualify under the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), the leave must run concurrently.
Employees May Use Paid Sick Leave
An employee may use vacation/paid time off and/or paid sick leave for time taken off for a purpose specified under this new law.
Omission of Reinstatement and Reimbursement Requirements
Existing law requires reinstatement and reimbursement for discrimination or retaliation, where prescribed. This new law, as it will now appear under the FEHA, omits such reinstatement and reimbursement provisions.
Notice Requirement
Employers must provide notice to employees of their rights under this new law. Notice must be provided “upon hire, to all employees annually, at any time upon request, and any time an employee informs an employer that the employee or the employee’s family member is a victim.”
By January 1, 2025, the Civil Rights Department must develop and post a form that employers may use to comply with the notice requirement.
Ogletree Deakins will continue to monitor developments with respect to this new law and will provide updates on the firm’s Leaves of Absence and California blogs as additional information becomes available. Premium-level subscribers to the Ogletree Deakins Client Portal will also be able to receive more information about the law in our California Paid Sick Leave and California Crime Victim Leave law summaries. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.
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