Question:  I am in the process of reopening my business after the COVID-19 shutdown.  Are there any new laws of which I need to be aware?

Answer:  Yes, although COVID-19 continues to be the focal point for most businesses, there are many new laws and recent court decisions of which employers must be aware – including expansion of anti-discrimination laws and updated guidance from the Department of Fair Employment and Housing (“DFEH”); expansions to paid family leave and the applicability of the independent contractor ABC Test.

The DFEH issued new regulations, effective July 1, 2020, which set forth limitations in advertising, recruitment, and the interview process related specifically to age- and religious-based discrimination.  For example, the regulations provide that job advertisements cannot include a maximum experience limitation; cannot require that candidates maintain a college-affiliated email address; and cannot use terms such as “young,” “recent college graduate,” or other terms that imply a preference for employees under the age of 40 or that a reasonable person would interpret as deterring or limiting employment of people age 40 and over.

The regulations also provide that any information related to an applicant’s schedule or availability for work cannot be used to ascertain the applicant’s religious creed, disability, or medical condition.  Any scheduling inquiry, either in an interview or on a job application, must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds in language such as: “Other than time off for reasons related to your religion, a disability or a medical condition, are there any days or times when you are unavailable to work?”

The DFEH also recently updated its COVID-19 FAQ.  While many of the updated answers defer to guidance from both the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission, the updated FAQ reminds covered employers of their obligations to engage in the interactive process with each employee who may need a reasonable accommodation due to a medical condition – including a medical condition which may increase an individual’s risk of severe illness from COVID-19.  See https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

Further, while California law already protects individuals from illegal discrimination by employers based on their sexual orientation, gender identity, and gender expression, the United States Supreme Court recently ruled that discrimination on the basis of these categories is unlawful discrimination on the basis of sex in violation of Title VII of the Civil Rights Act.  The Supreme Court explained, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”

In addition to anti-discrimination laws, employers and leave administrators should also be aware that on July 1, 2020, two new California laws went into effect.  Employees who are eligible for Paid Family Leave benefits may NOW receive these benefits for eight weeks.  Additionally, the independent contractor ABC Test under AB 5 became applicable for purposes of workers’ compensation, requiring reporting of payroll for individuals who may have been classified as independent contractors but who are now considered employees under AB5.