News & Events

Mandatory Sexual Harassment Prevention Training Must Be Completed By January 1, 2021

by Fenton & Keller

November 27, 2020

Question:  I remember reading about harassment prevention training requirements for small businesses, but the deadlines for completing the training kept changing.  Is there a deadline?

Answer:  Although originally all California employers who employ five or more employees had a January 1, 2020 deadline to provide effective interactive training regarding sexual harassment, Governor Newsom signed legislation extending the deadline to January 1, 2021.  Employers who have not yet completed the requisite trainings for their employees must do so by December 31, 2020 to comply with the January 1, 2021 deadline.  Employers who provided legally compliant harassment prevention training and education in 2019 do not have to provide it again until 2021.

As a reminder, Governor Brown signed Senate Bill 1343 in 2018 requiring businesses with five or more employees to provide interactive training in the prevention of sexual harassment to all employees. The training must address sexual harassment, including providing practical examples of harassment based on gender identity, gender expression, and sexual orientation.  It must also address the prevention of discrimination, retaliation, and abusive conduct.  The law requires employers to provide one hour of this interactive training to nonsupervisory employees and two hours of this interactive training to supervisors and managers.  The training must be provided once every two years. However, new hires or newly promoted supervisors must receive the training within 6 months of hire or promotion. Additionally, beginning January 1, 2021, employees who are seasonal, temporary, or hired to work for less than six months must receive the training within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.  Employers are not required to train employees who are employed for fewer than 30 calendar days and work for fewer than 100 hours.

The training may be completed by employees individually or as part of a group presentation, and it may be completed in shorter segments, as long as the applicable hourly total requirement is met.  To satisfy the “effective interactive training” requirement, the training may include any of the following:

• Classroom training that is in-person whose content is created by a trainer and provided to employees by a trainer, in a setting removed from the employees’ daily duties.
• E-learning that is individualized, interactive, computer-based training created by a trainer and an instructional designer that includes a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance within two business days after the question is asked.
• Webinar training that is an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time.
• The use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training.

The Department of Fair Employment and Housing (“DFEH”) provides free online training courses on preventing sexual harassment and abusive conduct in the workplace that satisfy California’s training requirements.  The training is available in English, Spanish, Chinese, Korean, Tagalog, and Vietnamese.  The DFEH’s online training may be accessed at https://www.dfeh.ca.gov/shpt/.  Employers must retain a record of all employees’ training for a minimum of two years.

The January 1, 2021 deadline is fast approaching, so now is the time to ensure your employees receive the required training before December 31, 2020.

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Employers With 5 or More Employees Will Be Required to Provide California Family Rights Act Leave

by Fenton & Keller

November 13, 2020

Question: I heard there is a new leave law that applies to small employers in California.  What is it?

Answer: The existing California Family Rights Act (“CFRA”) family and medical leave law allows eligible employees to take up to 12 weeks of unpaid leave in any 12-month period for personal illness, illness of a family member, or the birth, foster placement, or adoption of a child.  Recently enacted Senate Bill 1383 (“SB 1383”) expands the provisions of the CFRA and beginning January 1, 2021, the CFRA will require most employers with 5 or more employees to provide eligible employees with unpaid leave.

Prior to January 1, 2021, the CFRA only applied to businesses having 50 or more employees within a 75-mile radius.  The CFRA limited an employee’s ability to request leave in connection with a family member’s serious health condition to instances involving a child, parent, or spouse.  Further, the CFRA only provided a cumulative 12 weeks for both parents to take leave to bond with a child.

Starting January 1, 2021, the expanded CFRA will require all employers with five or more employees to provide family care and medical leave to all eligible employees. Eligible employees must have worked for the employer for more than 12 months, and must have worked a minimum of 1,250 hours during the 12 months prior to the leave.

The expanded CFRA does the following:

• Allows eligible employees to take up to 12 weeks of unpaid CFRA leave to care for the employee’s parent, child, spouse, grandparent, grandchild, sibling, and registered domestic partner who has a serious health condition.
• Requires that employers, upon granting the leave request,  guarantee the employee the same or a comparable position upon the termination of the leave.
• Allows employees to take unpaid leave because of a “qualifying exigency” related to the covered active duty or call to covered active duty for an employee’s spouse, registered domestic partner, child, or parent in the military.
• Requires employers to maintain existing health care coverage during CFRA leave.
• Expands the definition of “child” to include all children, regardless of age or dependency, and children of a domestic partner.
• Requires an employer who employs both parents of a child to allow each employee up to 12 weeks of unpaid leave during the first year of the child’s birth, adoption, or foster placement.

In 2018 California enacted the New Parent Leave Act (“NPLA”), requiring employers with 20-49 employees to provide eligible employees with leave to bond with a new child.  SB 1383 will repeal the NPLA on January 1, 2021 because the expanded CFRA provides new parent leave.

SB 1383 creates challenges for employers with 50 or more employees that are covered under both the CFRA and the federal Family and Medical Leave Act (“FMLA”).  Because SB 1383 expands the definition of covered family members under CFRA, employees who are covered by the CFRA and the FMLA may be eligible for up to 24 weeks of leave in a 12-month period.  For example, eligible employees may take 12 weeks of CFRA leave to care for their grandparent’s serious health condition, plus another 12 weeks of FMLA leave due to their own serious health condition.

Employers should review the expanded CFRA, revise employee handbooks, create new leave forms and leave tracking protocols, and begin preparing procedures for providing employees leave under the CFRA.

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Employee Flu Vaccinations

by Fenton & Keller

October 30, 2020

Question: Because of increased concerns of employee health and safety due to the pandemic, can I require my employees to get the flu vaccine?

Answer:  Employers in industries like healthcare and education must follow specific requirements relating to flu vaccine mandates.  All other employers are obligated to provide a safe and healthy workplace.  However, if an employer mandates flu vaccines for all employees, it must be prepared to address employees who refuse to get the vaccine.

The Centers for Disease Control and Prevention (CDC) recently published its findings and recommendations on immunizations for the 2020-2021 flu season stating that getting the flu vaccine this fall is more important than ever to protect everyone from the flu and reduce the strain on the healthcare system due to COVID-19. As such, it is understandable that an employer would consider mandating flu vaccines for all of its employees.  However, employers must balance their obligations to keep the workplace safe with their obligations to prevent discrimination under federal and California law.

Under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA), an employer must reasonably accommodate an employee with a disability if the person is otherwise qualified to safely perform all of the essential functions of the position, and the accommodation would not impose an undue hardship on the employer.  Likewise, an employer must reasonably accommodate sincerely held religious practices and beliefs that may conflict with workplace rules, as long as the religious practices and beliefs do not impose an undue hardship on the employer.

If an employer has a policy mandating the flu vaccine, and an employee refuses to get the vaccine because of a disability that would render the flu vaccine unsafe, or because of a sincerely held religious belief that prohibits vaccines, the employer cannot just terminate the employee for failing to comply with its policy. The employer must engage in the interactive process with the employee to try to find a reasonable accommodation that would allow the employee to continue to work without getting the vaccine.  Employers can ask employees for supporting documentation, like a doctor’s note, or information related to their refusal to get the vaccine.

Possible accommodations include imposing alternative requirements on the employee such as mask wearing, having the employee work remotely if feasible for the employee’s job duties, or alternate schedules or assignments for the employee to limit the risk and spread of infection.

As an alternative to mandating flu vaccines, employers may instead encourage employees to get the flu vaccine by providing information on vaccination benefits, offering scheduling flexibility to allow employees time to receive the vaccine, offering to pay employees for the time spent and cost of getting the vaccine, or hosting an on-site vaccination clinic.  Employers should implement other controls to protect workers and reduce the transmission of the seasonal flu virus in the workplace, including encouraging sick workers to stay home, promoting hand hygiene and cough etiquette, and keeping the workplace clean.

If an employer is asking employees for any medical information like proof of immunization or a doctor’s note regarding flu vaccine restrictions, it must ensure the privacy of this information keeping it in a secure location, separate from the employee’s personnel file, accessible only to designated staff members.

For more information on the CDC and EEOC recommendations, visit:

• https://www.cdc.gov/flu/prevent/vaccinations.htm
• https://www.cdc.gov/flu/season/faq-flu-season-2020-2021.htm
• https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

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Employee Handbook Updates Required for 2021

by Sara Boyns

October 16, 2020

Question: We haven’t updated our Employee Handbook for a few years.  Do we need to update it for 2021?

Answer:  Yes, there are several new laws that require employers of all sizes to update their employee handbook.  The new laws and required updates include:

• Expanded Leave Rights. Employers with 5-49 employees must adopt and implement a new California Family Rights Act (CFRA) policy.  Effective January 1, 2021, Senate Bill (SB) 1383 will require employers with 5-49 employees to provide up to 12 weeks of unpaid leave to qualifying employees.  Leave may be taken due to the birth, adoption or foster care of a child; the need to care for an eligible family member with a serious health condition; the employee’s own serious health condition; or a qualifying exigency  related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the United States Armed Forces.  SB 1383 repeals California’s New Parent Leave Act because it is no longer needed. It expands the definition of a “family member” and a “child,” so employers with 50 or more employees must revise existing CFRA policies to comply with this new law.  Also, the Department of Labor issued new Family Medical Leave Act (FMLA) forms in June 2020, and employers must modify their forms to comply with both the FMLA and the new CFRA.

The statutes relating to Crime Victims leave and Organ and Bone Marrow Donation leave have also changed, requiring updating of those policies.

• Harassment Prevention. Employers must ensure that their harassment prevention policy complies with new laws passed in 2019. Furthermore, all employers of 5 or more employees must provide 1 hour of sexual harassment and abusive conduct prevention training to nonsupervisory employees and 2 hours of this training to supervisors and managers once every two years.  The deadline to complete training is January 1, 2021.

In addition to updating employee handbooks, employers should prepare now to comply with the following new requirements:

• Revise Illness & Injury Prevention Program. In May 2020, Cal/OSHA issued Interim General Guidelines for Protecting Workers from COVID-19. The new guidance identifies specific infection control measures that are mandatory for California employers to implement and include in their IIPP. See https://www.dir.ca.gov/dosh/coronavirus/general-industry.html.
• Adopt a COVID-19 Specific Workplace Safety Plan. Cal/OSHA and the California Department of Public Health require all employers to adopt and implement a COVID-19 specific workplace safety plan and provide employee training.   The plan must be specific to your workplace, identify all areas and job tasks with potential exposures to COVID-19, include control measures to eliminate or reduce such exposures, maintain healthy business operations and a healthy work environment, and encourage employees to provide input into the plan.  See guidance for the plan here: https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening--en.pdf
• Prepare COVID-19 Exposure Notices.  Effective January 1, 2021, Assembly Bill 685 requires employers to provide notification to employees and local and state public health officials of potential exposure to COVID-19 in the workplace.  Notice of potential exposure must be provided to employees within one business day of the employer’s receipt of notice of a positive COVID-19 diagnosis or isolation order.  Employers should prepare the notices in advance so they can meet this strict deadline.

COVID-19 has presented new and confusing challenges for the workplace.  Having clear policies that ensure employees are well informed is more important than ever.

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