As we approach the end of the year, employers are busy putting plans in place for 2024. A key priority that should not be neglected as businesses prepare to commence the new year is updating their employee handbooks to ensure compliance with new laws as discussed below.
Reproductive Loss Leave
Beginning January 1, 2024, Senate Bill 848 requires employers with five or more employees to provide up to five days of protected leave for eligible employees experiencing a “reproductive loss event.” A “reproductive loss event” is defined to include a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. Employees are eligible for this leave if they have been employed for at least 30 days before the need for leave arises. An employee’s right to reproductive loss leave shall be construed as a separate and distinct right from any other protected leaves the employee would be entitled to.
When requesting a reproductive loss leave, an employee does not need to take time off consecutively. However, the employee must complete the leave within three months of the reproductive loss event. If an employee experiences more than one reproductive loss event within 12 months, an employer is only required to provide up to a total of 20 days of leave.
Employees requesting leave are not obligated to furnish any documentation to support their request. Furthermore, employers must maintain the confidentiality of any employee requesting reproductive loss leave. Any information provided to the employer shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law.
If an employer does not have an existing applicable paid leave policy, reproductive loss leave may be unpaid, except that an employee may use vacation, personal leave, accrued, and available sick leave or compensatory time off that is otherwise available to the employee.
Expanded Sick Leave Requirements
As discussed in greater detail here, as of January 1, 2024, Senate Bill 616 requires employers to increase the amount of paid sick leave provided to their employees from 3 days (24 hours) to 5 days (40 hours). Employers must also increase their annual sick leave usage cap from 3 days (24 hours) to 5 days (40 hours). Similarly, employers using the accrual basis to calculate paid sick leave must increase their overall annual accrual cap from 6 days (48 hours) to 10 days (80 hours).
Off Duty Cannabis Use and Drug Testing
Passed in 2022, but not effective until January 1, 2024, Assembly Bill 2188, discussed in further detail here, prohibits employers from discriminating against applicants and employees based on the use of cannabis off the job and away from the workplace or an employer required drug test, which reveals the presence of non-psychoactive cannabis metabolites. Key to the ban on this specific type of testing is the fact that it only shows whether an individual has used cannabis within the last few weeks and not whether an individual is currently impaired. While the law does contain exemptions for certain types of employers and employees, including those “in the building and construction trades,” most employers will need to revise their existing drug testing policies to delete reference to off duty cannabis usage and testing for marijuana if such testing reveals only the presence of non-psychoactive cannabis metabolites.
National Labor Relations Act Compliance
In 2023, the National Labor Relations Board took a stand against employer policies which potentially infringe upon employee rights to engage in concerted activity protected under Section 7 of the National Labor Relations Act (NLRA) (see detailed discussion here). As a result, employers should review their existing policies, particularly those addressing standards of conduct, confidentiality, and social media usage, to determine whether such policies have a reasonable tendency to chill employees from exercising their NLRA rights.
Next Steps for Employers
Employers should evaluate their current policies and procedures to ensure compliance with these new laws. Next steps include reviewing and updating employee handbooks or stand-alone policies and training management on the new laws. Please contact your Cook Brown attorney for assistance.
