California expands employee rights for victims of violence: new leave policies and protections under AB 2499 take effect Jan 1. Weintraub attorneys Meagan Bainbridge and Shauna Correia discuss what employers need to know to update their policies in the latest installment of California Employment News.

Watch this episode on the Weintraub YouTube channel.

Show Notes:

Meagan:

Hello, everyone. Thank you for joining us for this installment of California Employment News. My name is Meagan Bainbridge, and I’m a shareholder in the Weintraub Tobin Labor and Employment department.  And with me today is one of my partners, Shauna Correia. As you likely know, in California, employees who are victims of certain crimes and domestic violence have the right to take unpaid time off work when they need it, such as to get medical or legal help or to attend court proceedings. Today, we’re going to discuss Assembly Bill 2499, which expands this leave and requires additional accommodations for California employees who either are victims of qualifying acts of violence or who have family members who are victims. Shauna, can you remind listeners about the scope of the law that was in effect prior to the passage of AB 2499?

Shauna:

Labor Code Section 230 applied to all employers, regardless of size, and it prohibited employers from discharging or discriminating against an employee because of their status as a victim of a crime or abuse. It prohibited employers basically from discharging or discriminating against employees for taking time off to appear in court as a witness related to the crime or to obtain certain kinds of relief, like obtaining a restraining order or helping ensure the health, safety, or welfare of the victim or their child. Then, Section 230 also required employers to provide reasonable accommodations if the employee was a victim of domestic violence, sexual assault, or stalking, and they required an accommodation for the safety of the victim while they were at work unless it was an undo hardship. Labor Code Section 230.1 also imposed additional requirements and prohibitions on larger employers that have 25 or more employees. And those employers could not discharge or discriminate against employees taking time off for four reasons, basically seeking medical attention for injuries that were caused by a crime or abuse, or to obtain services such as from a domestic violence shelter or rape crisis center, or to obtain psychological counseling or mental health services for the crime, and then finally to participate in safety planning and take actions to increase safety from future crimes or abuse.

And then the companion to that would be the paid sick leave Labor Code Section 246.5 requires employers to allow employees to use their paid sick leave days on their request if they’re a victim of domestic violence, stalking, or sexual assault, and they need time off for those reasons.

Meagan:

Yeah, that’s right. Can you explain what has changed?

Shauna:

Sure. The first more procedural change is that these laws were moved out of the Labor Code and recodified underneath the umbrella of the Fair Implement and Housing Act. The importance of that is really a couple of things. One is the new rules will be enforced by the California Civil Rights Department, which enforces the Fair Implement and Housing Act for FIHA. This provides mechanisms for employees to bring civil actions in court rather than having them enforced by the Division of Labor Standards Enforcement, which is primarily responsible for enforcing wage and hour laws. So it makes some sense to move this statute there. But importantly, some of the definitions, and I’ll get into this in a little bit, but the rules for the leaves and accommodations now are going to more closely resemble the types of rules employers are more familiar with when they’re doing reasonable accommodations for disabilities under the FIHA. That is going to be more similar to the rules for family medical leave under the California Family Rights Act as well. And then, beyond just prohibiting discharging an employee, now it explicitly says that employers cannot engage in any form of retaliation against employees if they take or request to use the leave or their other rights under these laws.

Meagan:

Yeah.

Shauna:

I understand that Labor Code 230 and 230.1 apply to a specific list of crimes. And AB 2499, it’s a bit broader, is that right?

Meagan:

Yeah. So AB 2499 replaces some terminology that prior statutes referred to as crime or abuse. And now it talks about qualifying acts of violence. And so that’s more broadly defined. It still includes domestic violence, sexual assault, and stalking. But now it also includes any act, conduct, or pattern of conduct that includes bodily injury or death to someone, brandishing, exhibiting, or drawing firearms or other dangerous weapons, or any perceived or actual threat to use force against someone to cause physical injury or death. So it’s a little broader. A person can be a victim of a qualifying act of violence even if nobody has been arrested for or prosecuted or convicted of committing any crime.

Shauna:

Got it. So, does AB 2499 expand other definitions under the law?

Meagan:

Yes. So, the law previously provided some limited relief if the employer or their immediate family was not a crime victim. So, a couple of things have been expanded. So, the first is that the definition of family member has been expanded. So, under AB 2499, many of the protections under FIHA and paid sick leave now apply to not only an employee who is a victim of a qualifying act of violence but also any employee whose family member was a victim. And so, family members are broader than just immediate family and now include all the same individuals as under CIFRA. The biggest difference being that it now includes grandparents, grandchildren, or any designated person who doesn’t need to be a blood relative so long as that association with the employee is like a family relationship. Then again, now, just as under CIFRA, an employee can identify that designated person when they need to take the leave at that time. They don’t have to designate them in advance. However, an employer can limit the employee to only one person per 12-month period. As a result, if an employer has more than 25 employees or 25 or more employees, they’ll need to comply with certain anti-discrimination, anti-retaliation, reasonable accommodation, and paid sick leave requirements for this broader list of family members for employees who have these family members who are victims of qualifying acts of violence.

Okay.

Meagan:

And has a lot changed regarding the types of activities an employee can take time off to do, such as after an act of violence has occurred?

Shauna:

Yeah. So, the types of activities, there was a pretty long list already of the types of activities that victims of crimes could take. And so now victims of qualifying acts of violence can take additional categories, I believe, in addition to the ones that were already stated in the labor code. So, some of the new ones are providing care directly to a family member who’s recovering from an injury, seeking or obtaining civil or criminal legal services, participating, but also preparing to participate in or attend a civil, administrative, or criminal legal proceeding related to the act, or seeking or obtaining or providing child care or care to a dependent adult if that’s necessary to ensure the safety of that child or that dependent adult.

Meagan:

I understand that under the new law, employers can have the right to limit the total amount of leave taken. Can you describe those new limits?

Shauna:

Yes. Before, actually, there was no express limit on the amount of time an employee could take off of work. And again, this is unpaid leave. But now, AB 2499 allows employers to limit the total leave taken. The amount of leave an employee can take now really depends on whether the victim is the employee or the employee’s family member. So, if the employee is a victim, employers can limit the total leave taken by that employee to 12 weeks. But if the victim is a family member of an employee, then employers can limit it a little bit more. They can limit the amount of leave taken to help a family member relocate and try to move to a new location to five days, and they can limit the total amount of leave taken to 10 days. However, that doesn’t apply if the victim of the crime died as a result. If the employee needs time off, for example, to provide care to their niece or nephew, the child of a sibling of the employee, or to attend criminal proceedings that might extend past 10 days, the employee may take up to the full 12 weeks. This leave does expressly run concurrently with any leave that would be available under the CIFRA or the Federal Family Medical Leave Act.  And it doesn’t provide an employee with rights to exceed that amount of leave under the FMLA.

Meagan:

Right. So, although this time is off as unpaid, an employee can use paid sick leave for these purposes if either the employee or the family member is a victim of qualifying acts of violence, right?

Shauna:

Yeah, right. And in addition to the leave, employers should also remember that these employees may need other accommodations if they are victims of qualifying acts of violence or their family members are victims. So, the requirements from the labor code will carry over to the new law, and again, they’re also expanded. So, for example, employers might need to make reasonable accommodations for employees who need safety measures to protect them at work, like changing the locks, changing the employee’s work telephone number, or even making scheduling or work location changes at the employee’s request.

Meagan:

Can employers deny leave?

Shauna:

Employers will still have the right to deny accommodations or leave if it’s an undue hardship. But in addition, employers do not need to make accommodations or provide leave if the employee has not disclosed their status as a crime victim. So unlike with disabilities, where the employee doesn’t need to disclose, they do need to tell the employer that they’ve been a victim of a crime. And employers can ask for documentation to confirm that the employee or their family member is, in fact, a crime victim. Okay.

Meagan:

So, bottom line, what should employers do to prepare for the law taking effect on January 1st?

Meagan:

Well, we encourage employers to go ahead and take a look at their handbooks and make sure that their policies comply with the new law, including making sure that the updated definitions are in place, harmonizing with CIFRA and the paid sick leave policy as well. The Civil Rights Department will be publishing a new notice before July 1, 2025. And once that’s available, employers will need to publish that new notice.

Meagan:

Thanks, Shauna. And that’s all the time we have for today. Please subscribe to our blog, thelelawblog.com, for updates on this and other topics. Thanks for watching this episode of California Employment News, and we’ll see you next time.