December 14, 2022
Volume XII, Number 348
December 14, 2022
– California Starts Mandating Employee Bereavement Leave in 2023 by: Paul R.Lynd
– HHS Bulletin: Covered Entities’ Disclosure of PHI Collected via…by: Ryan P.Blaney and Danielle L.Brooks
– When 2 Minus 1 Still Equals 2: Combining Lots in a Planned Community by: Dana M.Lingenfelser and Kristin D.
Mitcham
– GREAT LEGAL WORK: TCPA Defendant Wins a HUGE Certification Victory…by: Eric J.
Troutman
– 401(k) Compliance Check #12: Don’t Borrow Trouble – Correcting…by: Belinda S.Morgan
– FDA Published Food Safety Culture Literature Review by: Food and Drug Law at Keller and Heckman
– Does a business have to provide a privacy notice directly to a…by: David A.Zetoony
– New Privacy Enforcement Act Commences in Australia by: Cameron Abbott and Rob Pulham
– NYC Delays Enforcement of Automated Employment Decision Tools Law to…by: Lindsay Colvin Stone
– U.S.
Department of State to Update Design on Nonimmigrant and…by: Ashley K.Kerr
– Cannon Fire: Newly-Famous Judge Stays All Discovery in TCPA Class…by: Eric J.
Troutman
– EPA Announces Proposed RFS for 2023-2025, Will Hold Public Hearing in…by: Lynn L.Bergeson and Carla N.Hutton
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– Unintended Consequences: Legal Compliance Concerns With Long-Term…by: Amber K.Dodds and Robert S.
Nichols
– UK Parliament Considers Retained EU Law (Revocation and Reform) Bill…by: Emma Thomson
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…by: James Frazier
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…by: Paul V.Kelly
– U.S.
Supreme Court Hears Oral Argument in Case Testing Limits of…by: Michelle E.Phillips and Christopher M.Repole
– Damages in Pre-Certification Discovery are Premature, Discovery…by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…by: Jason H.
Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…by: Stephen D.Bittinger
– DOJ Settlement with Electronic Health Records Provider Highlights…by: Ty E.
Howard and Lane M.Webster
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…
by: Abby M.Warren
– Increasing US Enforcement Action for Sanctions Violations by Crypto…by: Hannah Laming and Adam Klauder
– DOJ Antitrust Division and HHS OIG Enter into Partnership to Increase…by: Diane Hazel
– Can Discovery Be Compelled from a Party? Possession, Custody, Control…by: Kathryn C.Cole
– Weekly Bankruptcy Alert December 13, 2022 by: Bankruptcy & Creditors’ Rights
– California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide…
by: Taryn McPherson and Whitney Jones Roy
– Considerations for Public Company Bylaw Amendments in View of the New…by: Frank M.Placenti and Doron Lipshitz
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…by: Lynn L.Bergeson
– Telecom Alert: Providers Support 10-10.5 GHz NPRM; FCC Blocks Student…by: Jaimy “Sindy” Alarcon and Jim Baller
– New DOL Rule Enables Consideration of ESG Factors in Investing, Plus…by: Johnjerica Hodge and Danette R.Edwards
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.
Burton, III and Sahir Surmeli
– Court Holds NC State Health Plan Constitutes “Health Program or…by: Caroline Turner English and Alison Lima Andersen
– Energy & Sustainability IP Updates — December 2022 by: Brad M.Scheller
– Another Block Falls: BlockFi Files for Chapter 11 Protection,…by: David A.Lopez-Kurtz and Alex J.Albers
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– IRS Announces 2023 Increases to Estate and Gift Tax Exclusions by: Katlyn E.Koegel and Stephen C.
Rohr
– FDA Letter States that β-Nicotinamide Mononucleotide is Not Lawful…
by: Food and Drug Law at Keller and Heckman
– New York City’s Automated Employment Decision Tools Law Enforcement…by: Adam S.
Forman and Nathaniel M.Glasser
– Chips Chatter: December 5-12, 2022 by: Pablo E.Carrillo and Ludmilla L.Kasulke
– FTC Releases Tentative Agenda for December 14 Open Commission Meeting by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– How Many Behavioral Advertising Trackers Do Websites Deploy Currently? by: David A.
Zetoony
– FRB Proposes Climate-Related Financial Risk Management Principles by: Daniel Meade
– Energy & Sustainability Litigation Updates — December 2022 by: Jacob H.Hupart
– Investor-State Arbitration: 2022 ICSID Rule Amendments and Update on…by: Joseph J.Mamounas and Claudia D.Hartleben
– Warning Sign? A New Round of FDA Warning Letters Over CBD Consumer…
by: J.
Hunter Robinson and Josh Kleppin
– Cross Border Recognition, 25 years on: the view from each side of the…
by: Michelle N.
Saney
– A New Era of Technology in the Private Markets by: Louis Lehot and Christopher Converse
– New York City Postpones Enforcement of Automated Employment Decision…by: Simone R.D.
Francis
– New Law Seeks To Curtail Coerced Debts by: Keith Paul Bishop
– Republican SEC Commissioners Continue to Criticize Proposed Climate…by: Jacob H.Hupart
December 12, 2022
– Raters gonna rate…but there’s a bright side! by: Daniel B.
Guggenheim
– SEC Awards More than $20 Million to Whistleblower by: Mary Jane Wilmoth
– Duty to Preserve Evidence Covers Climate Review by Higher Educational…by: Monica H.Khetarpal and Laura A.Ahrens
– Preliminary Determination of Circumvention Regarding Solar Energy…by: Gregory Husisian and John E.Turlais
– Estate Planning for Football Season Ticket Holders by: Katherine M.
Szymanski and Rebecca K.Wrock
– Associate Attorney General Vanita Gupta Issues Statement on 2021 FBI…by: United States Department of Justice (DOJ)
– NLRB General Counsel Proposes Lower Standard for Requiring Employers…by: Adam C.Abrahms and Steven M.Swirsky
– American Hospital Association Urges DEA to Issue Special Registration…
by: Nathaniel M.Lacktman
– EPA Announces $25.7 Million in Grants to Support Water Systems in…by: EPA
– New York State Expands Workplace Protections for Nursing Employees by: Evandro C Gigante and Laura M.Fant
– Weekly IRS Roundup December 5 – December 9, 2022 by: Tax Practice Group McDermott Will Emery
– CMS Announces Strategy on Value-Based Payments for Specialty Care by: Anahita Anvari
– DOL Proposes Self-Correction Option and Other Changes to Voluntary…by: Justin S Alex
– The City of Los Angeles’ Fair Work Week Ordinance Requires…by: Tomi Oshita
– Considering Using Biometric Information? Adopt a Biometric Policy Now by: Mike H.Holland and Patrick J.McMahon
– Recent Developments in Telehealth Enforcement by: Sara Helene Shanti and Danielle Vrabie
– ESG INVESTING AND PROXY VOTING: DOL’S NEW FINAL RULE by: Kristina M.
Zanotti and Ruth E.Delaney
– IN A NEW YORK MINUTE, Telemarketing Laws Are Changing! by: Angelika Munger
– Fa-La-La Laws: Employer Liability Issues for Office Holiday Parties by: Katharine O.Beattie and Victoria Stockton Breese
– More Places, Less Spaces: California is Driving Down Development Costs by: Amanda S.Lee
– Bereavement Leave Becomes Mandatory in the Golden State by: Kaleb N.Berhe
– BETO Postpones December 13, 2022, Webinar on SAF Grand Challenge…by: Lynn L.Bergeson and Carla N.Hutton
– New Year Brings New Laws for Illinois Employers by: Mikela T.
Sutrina and Katherine H.Oblak
– Decision in U.S.v.Holland by: Gabriel L.
Imperato
– New Jersey Senate Labor Committee WARNs Effective Date of Amendments…by: Mark Diana and Brandon R.Sher
– Crypto Punked? Industry Bankruptcies Rattle Markets and Expose Major…by: George P.
Angelich and Dan Jasnow
– Global M&A Trends: A Wider Slowdown but Still on Track to Surpass…by: Louis Lehot and Brandee L.Diamond
– Top Five Labor Law Developments for November 2022 by: Jonathan J.Spitz and Richard F.Vitarelli
– “Cold-Pressed Juice” Lawsuit Permanently Dismissed by: Food and Drug Law at Keller and Heckman
– December 2022 AFS Privacy Report: Pandora’s Virtual Try-On Tool…by: Eva J.
Pulliam and D.Reed Freeman Jr.
– USPTO Releases New Guidelines Shortening the Response Deadline in…
by: Luna M.Samman
– ‘No Exit’: SEC Sanctions Investment Adviser for Impeding…by: Peter D.Hutcheon
– TradeTalk China: December 2 – December 9, 2022 by: Pablo E.
Carrillo and Ludmilla L.Kasulke
– $10.3 Million in Grants Awarded to Improve the Health of Long Island…by: EPA
– RE-STRUC: Tax Changes as of 2023 by: Thomas van der Vliet and Louisa van Isselmuden
– Episode 23: The Emerging Investigatory Focus on Telehealth: What You…by: Nathaniel M.Lacktman and Maureen M.Stewart
– The CAC Assessment Collection – Part 2: What Must Be Done Before…
by: Amigo L.Xie and Dan Wu
– CFIUS Clearance: GIC Private Limited and STORE Capital Corporation by: International Trade Practice at Squire Patton Boggs
– Here We Go Again: Lesser Prairie-Chicken Re-Listed Under the…
by: Karma B.Brown and Linda Trees
– What’s more common: opt-in, opt-out, or notice cookie banners? by: David A.Zetoony
– An Unstoppable Force Meets an Immovable Object: Microsoft to Fight…by: Jonathan Rubin
– Who Qualifies As An Expert Witness? by: Keith Paul Bishop
December 11, 2022
– Ex-Wall Street Trader Convicted of Fraud in Precious Metals Spoofing…
by: United States Department of Justice (DOJ)
– Former Navy Sailor Sentenced for Producing Images of Child Sexual…by: United States Department of Justice (DOJ)
California Starts Mandating Employee Bereavement Leave in 2023
Further expanding generous protected employee leaves, California now will require most private employers to provide up to five days of bereavement leave for a covered family member’s death.Assembly Bill 1949, which Governor Newsom signed, takes effect on January 1, 2023.
Background on Bereavement Leave
Before this new law, employee bereavement leave depended entirely on an employer’s policy.California law has not required that private employers provide bereavement leave.Previous efforts to require bereavement leave met with vetoes; Governor Schwarzenegger vetoed bereavement leave bills in 2007 and 2010, with Governor Brown following in 2011.The first bill would have mandated up to four days of unpaid leave, while the others sought up to three days.
In his 2010 veto of AB 2340, Governor Schwarzenegger stated that “[w]hile well-intentioned, the choice of whether or not to offer unpaid bereavement leave should be left to the employer.” He also expressed concern about imposing “new and somewhat ambiguous burdens on businesses as well as subjecting them to new threats of litigation over California-specific employment laws.”
In vetoing AB 325 in 2011, Governor Brown responded that granting bereavement leave “is the moral and decent thing to do and I believe that the vast majority of employers voluntarily make such an accommodation for the loss of a loved one” in any event, while also expressing concern over that bill’s provision allowing employees to go directly to court to sue over an alleged violation.
Other than California, only Oregon, Illinois, and Maryland have state bereavement leave laws covering private employers.Illinois’ expanded bereavement leave law also takes effect on January 1, 2023.
What Does AB 1949 Do?
AB 1949 requires most employers to allow employees to take up to five days of bereavement leave as a protected absence upon the death of certain family members.The covered family members are a spouse, child, parent, sibling, grandparent, grandchild, state-registered domestic partner, and parent-in-law – using the same definitions as the California Family Rights Act (CFRA) for family and medical leave.
Although added to the CFRA sections of the California Government Code, bereavement leave taken under AB 1949 does not count against an employee’s 12 workweeks of available CFRA leave each year.AB 1949 mandates additional leave.
An employee does not have to take the five days of bereavement leave consecutively.Instead, an employee may use the leave intermittently.
Bereavement leave must be “completed within three months of the date of death of the family member.” For example, an employee could take three days immediately upon a family member’s passing, followed by two days for a memorial service weeks later.To be eligible, an employee must have been employed for at least 30 days before the commencement of leave.
Significantly, the new law does not limit employees to a total of five days of bereavement leave per year.Nor does it place any limit on how much bereavement leave an employee may take in a year.Without limitation, AB 1949 allows an employee to take up to five days of bereavement leave per covered family member, or per occurrence.Thus, if an employee even more tragically has more than one covered family member pass away in a year, that employee will be eligible to take multiple bereavement leaves, with up to five days for each death.
For an employee to use bereavement leave, an employer may require an employee to supply documentation of a family member’s death.
An employer may request this information “within 30 days of the first day of the leave.” As examples of acceptable documentation, the new law lists “a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.”
An employee’s bereavement leave does not necessarily have to be paid.AB 1949 largely leaves that question up to the employer’s bereavement leave policy, if there is one.An employer can provide the five required days as paid bereavement leave, but is not required to do so.If an employer has no bereavement leave policy, then the leave may be unpaid.An employer’s policy also may provide for less than five days of paid leave.
In that situation, the number of days that an employer’s policy provides as paid sick leave would be paid, while the additional days, adding up to five days of total leave, would be unpaid.For example, an employer’s policy could provide for three days of paid bereavement leave, with the employee then eligible to take two more days unpaid.Regardless of whether leave is paid or unpaid, an employee must be provided up to five days of bereavement leave.
For any unpaid days, AB 1949 provides that an employee must be allowed to use accrued and available paid leave, such as vacation, paid time off, and personal or floating holidays if the employee wishes to do so.
An employee must maintain the confidentiality of any employee requesting bereavement leave under AB 1949.Any documentation that an employee submits “shall be maintained as confidential and shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law.”
Like the CFRA, AB 1949 applies to employers with five or more employees.The law contains an exemption for some union employees subject to a “valid” collective bargaining agreement.The contract must expressly provide for bereavement leave at least “equivalent” to AB 1949’s requirements.As with other collective bargaining agreement exemptions in the Labor Code, the contract also must provide for wages, hours, and working conditions of the employees, provide premium wage rates for all overtime hours worked, and a regular hourly rate of pay “of not less than 30 percent above the state minimum wage.” In 2023, California state minimum wage increases to $15.50 an hour for all employees, with at least $20.15 an hour required for the union contract exemptions.
Providing a protected leave, AB 1949 prohibits employers from denying bereavement leave that the new law requires, as well as interfering with such leave.An employer cannot discriminate against, discharge, demote, fine, suspend, or expel an employee for exercising the right to bereavement leave, nor can an employer refuse to hire an individual for having done so.
An individual can file a charge with the California Civil Rights Department (formerly the California Department of Fair Employment and Housing) for any alleged violation, with a lawsuit also possible after an employee receives a right-to-sue letter.
Takeaways for Employers
AB 1949 adds to California employers’ protected leave burdens.Many, if not most, California employers already provide bereavement leave, either as matter of employer policy or case-by-case as situations arise.
With the enactment of AB 1949, employers should review their policies and practices concerning bereavement leave.Employers without a bereavement leave policy should consider adopting one, while employers with an existing policy should review it for compliance with AB 1949.Regardless, employers should review their practices and policies to ensure compliance with AB 1949.
Further, employers should determine whether they wish to provide paid bereavement leave and, if so, how much – while understanding that an employee still must be provided up to five days of bereavement leave, whether paid or unpaid.Employer policies should make clear to employees that they will not experience any discrimination or adverse action for requesting to use, or using, bereavement leave that AB 1949 protects.
Employers should consult counsel for advice on these issues..