Last Updated on November 24, 2020 by bigfish-admin
On September 28, 2020, California Governor Gavin Newsom signed AB 2292, expanding the existing law which provides entitlement to leave for crime and abuse victims in the state, effective January 1, 2021.
What Does This Mean?
This assembly bill amends California Labor Code Sections 230 and 230.1, prohibiting an employer in California from “discharging, or discriminating or retaliating against, an employee who is a victim of crime or abuse[,] for taking time off from work to obtain or attempt to obtain relief.”
It will also expand existing laws providing protected leave for employees who are victims of (but not necessarily limited to):
- domestic violence
- sexual assault
- other crimes or offenses which “caused physical injury or that caused mental injury and a threat of physical injury”
- an employee “whose immediate family member is deceased as a direct result of a crime”
AB 2992 also expands the types of documentation for leave eligibility that an employer may provide to verify that a crime or abuse occurred.
Who Is an Eligible Victim?
AB 2292 defines the term victim to include the following:
- A victim of stalking, domestic violence, or sexual assault
- A victim of a crime that caused physical injury or that caused mental injury and threat of physical injury
- An individual whose immediate family member is deceased as the direct result of a crime
What Constitutes a Crime?
An employee may take protected leave if she or he has been a victim of a crime or public offense, wherever it may have taken place, “that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent adult.” It need not matter “whether any person is arrested for, prosecuted for, or convicted of committing the crime.”
When Must an Employee Notify of Need for Leave?
An employee must provide “reasonable advance notice of employee’s intention to take time off, unless doing so is not feasible.” If an unscheduled absence occurs, the employee must provide the employer with documentation within a reasonable time after the absence.
What Documentation is Required for Leave from an Employee?
To be protected under AB 2992, an employee can provide any of the following for documentation purposes:
- A police report indicating the employee was a victim of a crime
- A court order protecting or separating the employee from the perpetrator of the crime or abuse, or other evidence from the court or prosecuting attorney that the employee has appeared in court
- Documentation from a licensed medical professional, domestic violence counselor, sexual assault counselor, victim advocate, licensed health care provider, or counselor that the employee was undergoing treatment or receiving services for either physical or mental injuries or abuse resulting in victimization from crime or abuse
- Any other form of documentation that reasonably verifies that the crime or abuse occurred, including but not limited to, a written statement signed by the employee — or individual acting on the employee’s behalf — certifying that the absence is for a purpose authorized under section 230.1
All employers must maintain the confidentiality of any employee requesting protected leave.
Additional Obligations for Employers With 25+ Employees
In addition to the obligations above, employers with 25 or more employees must also provide leave to an employee who seeks time off from work for any of the following purposes:
- To seek medical attention for injuries caused by crime or abuse
- To obtain services from a domestic violence shelter, rape crisis center, or victim services organization or agency as a result of crime or abuse
- To obtain psychological counseling or mental health services related to an experience of crime or abuse
- To participate in safety planning and take other actions to increase safety from future crime or abuse, including temporary or permanent relocation
California employers should prepare for this law immediately, as 2021 is rapidly approaching.
- Review Existing Policies. Review your existing PTO practices as they relate to victims of crime.
- Revise Applicable Policies. Update existing leave policies and begin to implement necessary changes to comply with AB 2992.
- Communicate Changes. Communicate all upcoming changes to employees no later than January 1, 2021 by letting them know of changes to existing policies or new policies.
Big Fish will continue to report on further developments to this law and other related legislation nationwide. Information contained in this publication is intended for educational or informational purposes only and does not constitute legal advice or opinion, nor is this a substitute for the professional judgment of an attorney. For additional assistance with how to prepare to comply with these new requirements, contact Big Fish Employer Services.