On September 28, 2020, Governor Gavin Newsom signed Assembly Bill (AB) 2992, which significantly expands the circumstances under which protected leave is available to California employees who are victims of crime or abuse. California law already requires all employers to grant protected leave (meaning the employer cannot discharge, discriminate against, or retaliate against an employee for taking the leave) to an employee who is the victim of domestic violence, sexual assault, or stalking in order to allow the victim/employee to seek “relief,” such as a restraining order, for victim/employee or their child. The new legislation, which modifies California Labor Code sections 230 and 230.1, will require employers to allow this type of leave under a much broader set of circumstances.
Effective January 1, 2021, in addition to victims of domestic violence, sexual assault, and stalking, two other categories of employees will also be entitled to protected leave: (1) employees who have been victims of crime that caused physical injury or that caused mental injury and a threat of physical injury; and (2) employees whose immediate family member died as the direct result of a crime. For these purposes, a “crime” includes any act “that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent adult.” For purposes of entitlement to this protected leave, there is no requirement that the act actually took place in California (only that it would be considered a misdemeanor or felony in California) or that any person was “arrested for, prosecuted for, or convicted of, committing the crime.”
AB 2992 also expands the type of documentation a victim/employee may provide their employer in order to certify their right to protected leave after an unscheduled absence. Effective January 1, 2021, an employer is prohibited from taking action against a victim/employee for an unscheduled absence if, within a reasonable time after the absence, the victim/employee provides any of the following:
-A police report indicating that the employee was a victim of crime or abuse.
-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 other counselor certifying that the employee was undergoing treatment or receiving services for physical or mental injuries or abuse resulting in victimization from the 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 an individual acting on the employee’s behalf, certifying that the absence is for a purpose authorized under this California Labor Code section 230 or 230.1.
Under current law, employers with 25 or more employees are already required to provide protected leave to victims/employees under additional circumstances, and the new legislation expands these obligations further. Effective January 1, 2021, employers of 25 or more employees must grant leave to an employee who seeks to take 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, program, rape crisis center, or victim services organization or agency as a result of the 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.
This new legislation creates new obligations for all California employers. Therefore, all employers should consider whether they need to update their leave policies to comply.