Keenan Briefings

California Property & Casualty Legislative Summary 2021 End of Session

October 10, 2021 was the deadline for Governor Newsom to sign or veto bills that were sent to him at the end of the 2021 legislative session. This was the second year in which the COVID-19 pandemic dominated legislation. Lawmakers also sought to address standards for law enforcement officers in the wake of a nationwide discussion of policing in communities of color. Workers’ compensation legislation took a back seat this year, and we can likely expect to see a spate of bills addressed at various aspects of the workers’ compensation system in 2022.

Below are the bills impacting property, liability and workers’ compensation that were signed into law by the Governor this year. Unless otherwise specified, each of the bills below will go into effect on January 1, 2022.

 

Claims Against Public Agencies - Enrollment Agreements

AB 272 (Chapter 146, Statutes of 2021) — Enrollment Agreements

This law will authorize a minor to disaffirm a provision in a school’s enrollment agreement that purports to waive a legal right, remedy, forum, proceeding, or procedure, to the extent that the provision is construed to require the minor to waive a legal right, remedy, forum, proceeding, or procedure arising out of a criminal sexual assault or criminal sexual battery, as defined, on that minor. This law applies only to enrollment agreements for public or private schools maintaining a kindergarten or any of grades 1 through 12.

AB 1455 (Chapter 595, Statutes of 2021) —Sexual Assault by Law Enforcement Officers: Actions Against Public Entities: Statute of Limitations

This law revises the statute of limitations on actions involving sexual assault committed by a law enforcement officer while the officer is employed with a law enforcement agency. It eliminates the application of the claim presentation requirement. It also amends the applicable statute of limitations to the later of 10 years after judgment in a related criminal case against the officer; or 10 years after the officer is no longer employed by the law enforcement agency that employed the officer when the assault occurred. This bill also revives such claims when the plaintiff was 18 years of age or older at the time of the assault and the claim has not otherwise been litigated or compromised but would otherwise be time barred. Such revived actions are to be brought with 10 years of the most recent act, as provided, or three years from the date of discovery of an injury or illness resulting from the assault.

SB 501 (Chapter 218, Statutes of 2021) —Claims Against Public Entities

SB 501 extends the conditions upon which an injured party who is either a minor or physically or mentally incapacitated is entitled to have their untimely claims for damages against a public entity granted. Specifically, this law: 1) Requires an application for an untimely claim against a public entity be granted where the person who sustained the alleged injury, damage, or loss was a minor during any of the statutory timeframe for the presentation of the claim, provided the application is presented within six months of the person turning 18 years of age or a year after the claim accrues, whichever occurs first. 2) Requires an application for an untimely claim against a public entity be granted where the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during any of the statutory timeframe for the presentation of the claim and by reason of that disability failed to present a claim during that time, provided the application is presented within six months of the person no longer being physically or mentally incapacitated, or a year after the claim accrues, whichever occurs first.

 

COVID-19

AB 86 (Chapter 10, Statutes of 2021) — COVID-19 Relief and School Reopening, Reporting, and Public Health Requirements

AB 86 set COVID-19-related reopening and public health requirements for California K-12 schools. For a summary of the public health and safety aspects of the bill, please review our briefing on the subject, published in March of 2021.

AB 654 (Chapter 522, Statutes of 2021) — COVID-19 Exposure: Notification

Among other things AB 654 requires employers, when giving notice to the local public health agency of a COVID-19 outbreak, employers are required to give that notice within 48 hours or one business day, whichever is later. It also expands the employers exempt from the COVID-19 outbreak reporting requirement to various licensed entities, including, but not limited to, community clinics, adult day health centers, community care facilities, and child day care facilities. These provisions will sunset on January 1, 2023. For more information on AB 654, please see our briefing.

AB 845 (Chapter 221, Statutes of 2021) — Disability Retirement: COVID-19: Presumption

This law establishes a rebuttable presumption, until January 1, 2023, that a COVID-19 related disability is employment-related for purposes of determining a disability retirement for public retirement system members.

SB 336 (Chapter 487, Statutes of 2021) — Public Health: COVID-19

SB 336 requires when the State Department of Public Health issues a statewide order or mandatory guidance, or when a local health officer issues an order, related to preventing the spread of COVID-19, or protecting public health against a threat of COVID-19, that they publish on their internet website the order or guidance and the date that the order or guidance takes effect. It also requires the department or local health officer to create an opportunity for local communities, businesses, nonprofit organizations, individuals, and others to sign up for an email distribution list relative to changes to the order or guidance. This law is effective immediately, as urgency legislation.

Cyber Security

AB 1352 (Chapter 593, Statutes of 2021) —Independent Information Security Assessments: Military Department: Local Educational Agencies

This law will authorize the Military Department, at the request of a local educational agency, and in consultation with the California Cybersecurity Integration Center, to perform an independent security assessment of the local educational agency, or an individual school site under its jurisdiction, the cost of which would be funded by the LEA.

 

Employment

AB 1033 (Chapter 327, Statutes of 2021) —California Family Rights Act: Parent-In-Law: Small Employer Family Leave Mediation: Pilot Program

AB 1033 clarifies that employers covered under the California Family Rights Act (CFRA) must grant eligible employees up to 12 weeks of job-protected time off from work annually for the purpose of providing care to a parent-in-law with a serious medical condition. Since the expansion of CFRA pursuant to SB 1383 (Jackson, Chapter 86, Statutes of 2020), the list of relatives that employees can take time off to care for has included: a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner. SB 1383also included a definition of “parent-in-law” but, according to the sponsors of AB 1033, SB 1383 inadvertently left the term parent-in-law off the list of family members that an employee could take leave to care for. As a result ,there had been some confusion about whether employers must provide employees job-protected time off under CFRA to care for a parent-in-law with a serious medical condition.

SB 331 (Chapter 638, Statutes of 2021) —Settlement and Non-disparagement Agreements

SB 331 makes two significant changes to existing law. First, where existing law prohibits settlement provisions that prohibit an employee from disclosing facts relating to an action alleging discrimination based on sex, this law extends that prohibition to actions alleging discrimination based on any other protected characteristic. Second, where existing law prohibits an employer from requiring an employee to sign an agreement that prohibits the employee from disclosing information about unlawful acts in the workplace, this law extends this prohibition to severance agreements that an employee may sign upon separation from employment.

SB 657 (Chapter 109, Statutes of 2021) — Employment: Electronic Documents

This law provides that in instances where an employer is required to physically post information, the employer may also distribute that information to employees by email with the document or documents attached. However, distribution by email does not substitute for posting, and will not alter the employer’s obligation to physically display the required posting.

SB 807 (Chapter 278, Statutes of 2021) —Enforcement of Civil Rights: Department of Fair Employment and Housing

This law makes procedural modifications to how the Department of Fair Employment and Housing (DFEH) enforces California's civil rights and anti-discrimination laws and changes certain deadlines and record retention periods. Of note to employers, it extends the employer record retention requirement from two years to four. It also tolls the statute of limitations for filing a civil action during any period of time in which DFEH is investigating or mediating the complaint.

 

Law Enforcement Officers

AB 490 (Chapter 407, Statutes of 2021) — Law Enforcement Agency Policies: Arrests: Positional Asphyxia

This law bans law enforcement agencies from authorizing techniques or transportation methods that involve a substantial risk of “positional asphyxia” which is defined as situating a person in a manner that compresses their airway and reduces the ability to sustain adequate breathing. It includes the use of any physical restraint that causes the person’s respiratory airway to be compressed or impairs the persons breathing or respiratory capacity, including any action in which pressure or body weight is unreasonably applied against are strained person’s neck, torso, or back, or positioning a restrained person without reasonably monitoring for signs of asphyxia.

SB 2 (Chapter 409, Statutes of 2021)—Peace Officers: Certification: Civil Rights

This law grants new powers to the Commission on Peace Officers Standards and Training (POST) by creating a process to investigate and determine the fitness of a person to be a peace officer, and to suspend or revoke the certification of peace officers who are found to have engaged in "serious misconduct." It requires POST to adopt a definition of "serious misconduct," that includes dishonesty; abuse of power; physical abuse; sexual assault; bias on the basis of race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status; acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer's obligation to uphold the law or respect the rights of members of the public; participation in a law enforcement gang; failure to cooperate with an investigation into potential police misconduct; and failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary. It requires an agency that employs peace officers to employ as a peace officer only individuals with current, valid certification, except that an agency may provisionally employ a person for up to 24 months, pending certification by POST. It also requires, beginning January 1, 2023, any agency employing peace officers to report to POST events that could be grounds for potential decertification within 10 days of their occurrence. It further requires that any agency employing peace officers must report to POST any events that could be potential grounds for decertification that occurred between January 1, 2020 and January 1, 2023. The law also makes changes to the Tom Bane Civil Rights Act by eliminating specified immunity provisions.

SB 296 (Chapter 637, Statutes of 2021) — Code Enforcement Officers: Safety Standards

This law will require all local jurisdictions that employ “code enforcement officers” to establish specific safety standards for each assignment based on the demands of the job. The law defines a “code enforcement officer” as “a person who is not described as a peace officer and who is employed by a governmental subdivision, public or quasi-public corporation, public agency, public service corporation, a town, city, county, or municipal corporation, whether incorporated or chartered, who has enforcement authority for health, safety, and welfare requirements, and whose duties include enforcement of a statute, rule, regulation, or standard, and who is authorized to issue citations or file formal complaints.”

 

Pupil Health and Safety

AB 309 (Chapter 662, Statutes of 2021) —Pupil Mental Health: Model Referral Protocols

This law will require the California Department of Education (CDE)to develop, in consultation with various entities, model mental health referral protocols for voluntary use by local educational agencies (LEAs), and to post the protocols on its website.

AB 367 (Chapter 664, Statutes of 2021) —Menstrual Products

This law, the Menstrual Equity for All Act of 2021, requires all public schools maintaining any combination of classes from grades 6 to 12, inclusive, to stock the school’s restrooms at all times with an adequate supply of menstrual products in all women’s restrooms and all-gender restrooms, and in at least one men’s restroom. It also requires the California State University (CSU) and each community college district (CCD), and encourages the University of California (UC), independent institutions of higher education, and private postsecondary educational institutions to stock an adequate supply of menstrual products at no fewer than one designated and accessible central location on each campus. The law goes into effect beginning with the 2022-2023 school year.

AB 856 (Chapter 123, Statutes of 2021) —Pupil health: COVID-19 Youth Health Information Act

AB 856, the “COVID-19 Youth Health Information Act” requires the California Department of Education (CDE) to post on its website information related to the safe return of pupils to exercise and physical activity after exhibiting signs or symptoms of, or testing positive for, COVID-19 and monitor the best practices and evolving guidelines on the safe return of pupils. It also encourages schools and school districts to give pupils and their parents and guardians ready access to this information. For more information on AB 856,please see our briefing.

SB 24 (Chapter 129, Statutes of 2021) —Domestic Violence: Protective Orders: Information Pertaining to a Child

Effective January 1, 2023, this law authorizes a court to include in an ex parte restraining order a provision restraining a party from accessing records and information pertaining to the health care, education, daycare, recreational activities, or employment of a minor child of the parties. The law requires certain third parties that provide services to children (including public and private schools, health care facilities, and day care facilities) to adopt protocols to ensure that parties subject to a restraining order are not able to access records or information pertaining to the child. At a minimum, the protocols must include designating appropriate personnel to receive such protective orders, establishing a means of ensuring that the restrained party is identified and not able to access the records or information, and implementing a procedure for documenting receipt of a copy of the protective order. Such protocols must, by February 1, 2023, be adopted as a matter of course by “essential care providers,” defined to include organizations that frequently provide essential social, health, or care services to children. By contrast, “discretionary services organizations,” defined as organizations that provide non-essential services to children, such as recreational activities, entertainment, and summer camps, are required to adopt a protocol only if they are provided with a copy of a restraining order.

SB 97 (Chapter 674, Statutes of 2021) —Pupil Health: Type I Diabetes Information: Parent Notification

This law will require the California Department of Education (CDE) to develop type 1 diabetes informational materials for the parents and guardians of pupils, and will require those informational materials to be made available to each school district, county office of education (COEs), and charter school through the CDE’s website. On and after January 1, 2023, school districts, COEs, and charter schools must make those materials available to the parent or guardian of a pupil when the pupil is first enrolled in elementary school, or as part of the notifications sent to parents and guardians at the beginning of the school year under Education Code section 48980.

SB 722 (Chapter 679, Statutes of 2021) —Pupil Safety: Swimming Pools: Adult Presence: Cardiopulmonary Resuscitation Training

This statute, also known as “Alex’s Law,” requires a LEA that sponsors or hosts an on-campus event that is not part of an interscholastic athletic program around a swimming pool to have at least one adult with a valid certification of cardiopulmonary resuscitation (CPR) training present. SB 722specifies that an adult supervisor of the event with CPR training, as mandated by the California Interscholastic Federation (CIF) coaching education program requirements, satisfies the bill’s requirement.

 

School and College Employees

AB 275 (Chapter 556, Statutes of 2021) —Classified Community College Employees

AB 275 reduces the probation period for classified community college employees in non-merit districts from one year to 6 months or 130 days of paid service, whichever is longer. However, this law will not apply to a conflicting collective bargaining agreement entered into before January 1, 2022, until the expiration or renewal of that collective bargaining agreement. Under this legislation, full-time police officers and dispatch personnel in both non-merit and merit California community college districts will retain a 1-year probation period.

AB 438 (Chapter 665, Statutes of 2021) —School Employees: Classified Employees: Layoff Notice and Hearing

This new law revises and recasts provisions relating to the layoff of classified employees of school districts and community college districts to require certain notices and opportunities for a hearing when a permanent classified employee’s services will not be required for the ensuing year due to lack of work or lack of funds. It defines “permanent classified employee” to include both an employee who was permanent at the time the notice or right to a hearing was required and an employee who became permanent after the date of the required notice. The law also expresses the intent of the legislature to provide permanent classified school employees and those who become permanent classified school employees with the same rights to notice and hearing with respect to layoffs as are provided to certificated employees of school districts, including teachers and administrators, and academic employees of community college districts. If classified positions must be eliminated as a result of the expiration of a specially funded program, the bill requires written notice of the layoff date and certain rights be given to the classified employees not less than 60 days before the effective layoff date. Finally, if after January 1, 2021, the legislature provides certificated or academic employees with any additional rights to notice or hearing as to layoffs, the law will require that permanent classified employees be afforded the same rights by the school district or community college district.

AB 1383 (Chapter 29, Statutes of 2021) —Community Colleges: Academic Employees: Involuntary Administrative Leave

AB 1383 specifies that a community college employer should complete its investigation of an employee’s accused misconduct within 90 working days of placing the employee on involuntary paid administrative leave.

SB 270 (Chapter 330, Statutes of 2021) —Public Employment: Labor Relations: Employee Information

Effective July 1, 2022, this law will authorize a public employee bargaining representative to file an unfair labor practice claim with the Public Employee Relations Board (PERB) if a public employer fails to provide certain employee information in a timely and accurate manner. It provides that a public employer has 20 calendar days to cure the alleged violation (i.e., providing an inaccurate or incomplete list of employees to the exclusive representative) and in so doing, the public employer must give written notice by either certified mail or electronically to the applicable exclusive representative of the actions taken. It provides that a public employer may avail itself of the opportunity to cure the alleged violation no more than three times in any 12-month period. The law will authorize PERB to levy a civil penalty up to $10,000 and provides for an award of a prevailing party’s fees and costs.

 

Training

AB 506 (Chapter 169, Statutes of 2021) —Youth Service Organizations: Mandated Reporters

AB 506 requires an administrator, employee, or regular volunteer of a youth service organization, to complete child abuse and neglect reporting training. This bill also requires an administrator, employee, or regular volunteer of a youth service organization to undergo a fingerprint-based background check. This bill further requires a youth service organization to develop and implement child abuse prevention policies and procedures that, among otherthings, ensure the reporting of suspected incidents of child abuse to persons or entities outside of the organization.

SB 14 (Chapter 762, Statutes of 2021) —Pupil Health: School Employee and Pupil Training: Excused Absences: Youth Mentaland Behavioral Health

This new law requires a student's absence related to pupil mental or behavioral health to count as an excused absence for school attendance reporting and, subject to appropriation, requires the California Department of Education (CDE), by January 1, 2023, to recommend best practices and identify evidence-based and evidence-informed training programs for schools to address youth behavioral health, including staff and student training. SB 14 is effective immediately as an urgency measure.

 

Wildfires

AB 642 (Chapter 375, Statutes of 2021) —Wildfires

AB 642 makes multiple changes to state law to enhance wildland fire prevention efforts, including, among other things, incorporating and facilitating cultural burning practices, and requiring the identification of moderate and high fire hazard severity zones in local responsibility areas(LRAs). Among other things, the law requires the Director of Forestry and Fire Protection to identify moderate and high fire hazard severity zones taking into consideration certain wildfire risk factors including winds. It requires that local agencies make information regarding these zones available for public comment, in addition to public review, within 30 days after receiving a transmittal from the director that identifies fire hazard severity zones. The law also requires the California Department of Forestry and Fire Prevention (CAL FIRE) in consultation with the State Fire Marshal and the Insurance Commissioner, to make recommendations on how to understand and model wildfire risk for a community and specific parcels within the LRA or State Responsibility Area (SRA). The recommendations are required to include the identification of mitigation factors that must be included to determine risk, cost effective ways to gather data on mitigation factors, a review of applicable wildfire risk models, and an evaluation of the effectiveness of natural infrastructure as a community buffer, among other requirements. The recommendations will be posted online by July 1, 2023.

 

Workplace Safety

SB 606 (Chapter 336, Statutes of 2021) — Workplace Safety: Violations of Statutes: Enterprise-Wide Violations: Egregious Violations

This new law authorizes the Division of Occupational Safety and Health (Cal/OSHA) to issue a citation for an egregious violation of an occupational safety or health standard, order, special order, or regulation, for each willful violation determined by Cal/OSHA, and count each employee affected by the violation as a separate violation for the purposes of the issuance of fines and penalties. For more information on SB 606 please see our briefing.

 

AP Keenan is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.