On September 29 and 24, 2024, respectively, California’s governor signed two bills that amend California’s Healthy Workplaces Healthy Families Act (HWHFA), the statewide paid sick leave law. AB 2499 expands who qualifies for “safe” leave if they are a victim of certain criminal offenses, along with the reasons they can use leave when they are. SB 1105 expands covered uses for agricultural employees. Additionally, AB 2499 revises, and transfers from the Labor Code to the Fair Employment & Housing Act, unpaid leave requirements for victims of domestic violence, sexual assault, stalking, or other crimes, and those performing jury duty or complying with a subpoena or court order to be a witness. These amendments will take effect on January 1, 2025.

Paid Sick Leave for Victims of Domestic Violence, Sexual Assault, Stalking, or (Now) Crime

The changes made by AB 2499 will affect both paid leave (Healthy Workplace Healthy Families Act) and unpaid leave (Fair Employment & Housing Act) requirements.

Healthy Workplace Healthy Families Act

AB 2499 makes three notable changes to the HWHFA: 1) Allows leave when a family member is a victim; 2) Extends to victims of “crime”; and 3) Expands the reasons an employee can use paid sick leave for “safe” time purposes.

Leave if Family Member Is a Victim: Paid sick leave for “safe” time purposes will no longer be limited to employees who are victims; it must also be available when an employee’s family member is a victim. It is important to note that, while the amended HWHFA cross-references various provisions in new Government Code section 12945.8, it does not cross-reference the definition of family member, which includes a slightly different definition of “designated person.”¹ Accordingly, for paid sick leave purposes, when determining whether the victim is a covered designated person, employers should look to the HWHFA’s definition: a person the employee identifies at the time they request leave.

Victim Status Extends to Additional Crimes: Under the amendments, paid sick leave will continue to be available if the individual is a victim of domestic violence, sexual assault, or stalking, but will also be available if the individual is a victim of an act, conduct, or pattern of conduct that includes any of the following in which a third party:

• Causes bodily injury or death to another individual;

• Exhibits, draws, brandishes, or uses a firearm, or other dangerous weapon, with respect to another individual;

• Uses, or makes a reasonably perceived or actual threat to use, force against another individual to cause physical injury or death.

More Reasons to Use Leave: These changes not only expand the circumstances for which an employee can use paid sick leave for "safe" purposes associated with themselves, but also the circumstances for which paid sick leave is available when assisting family members (notable differences between present and future standards are in bold):

• Obtain or attempt to obtain any relief (includes, but is not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim, their child, or a family member).

• Seek, obtain, or assist a family member to seek or obtain, medical attention for or to recover from injuries caused by a qualifying act of violence.

• Seek, obtain, or assist a family member to seek or obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency as a result of a qualifying act of violence.

• Seek, obtain, or assist a family member to seek or obtain psychological counseling or mental health services related to an experience of a qualifying act of violence.

• Participate in safety planning or take other actions to increase safety from future qualifying acts of violence.

• Relocate or engage in the process of securing a new residence due to the qualifying act of violence, including, but not limited to, securing temporary or permanent housing or enrolling children in a new school or childcare.

• Provide care to a family member who is recovering from injuries caused by a qualifying act of violence.

• Seek, obtain, or assist a family member to seek or obtain civil or criminal legal services in relation to the qualifying act of violence.

• Prepare for, participate in, or attend any civil, administrative, or criminal legal proceeding related to the qualifying act of violence.

• Seek, obtain, or provide childcare or care to a care-dependent adult if the childcare or care is necessary to ensure the safety of the child or dependent adult as a result of the qualifying act of violence.

Fair Employment & Housing Act

Previously, unpaid leave protections for victims of domestic violence, sexual assault, stalking, or crimes, those performing jury duty, or complying with a subpoena or court order to be a witness were included in Labor Code sections 230 and 230.1. These protections will move to new Government Code section 12945.8 and become part of California’s Fair Employment & Housing Act (FEHA), which is enforced by California’s Department of Civil Rights.

In many respects, standards will remain unchanged. However, some new language will have limited impact. For example, while employers must continue to maintain confidentiality of information employees submit in support of their need for leave, a new provision reinforces that principle. The new provision states that when an employee provides evidence of victim status or certification in support of leave, they are not waiving any confidentiality or privilege that may exist between the employee or employee’s family member and a third party. Similarly, in addition to being able to use vacation, personal leave, or compensatory time off to convert an otherwise unpaid absence into a paid one, employees can use paid sick leave.

Some other changes, however, are more notable. For example, employers with 25 or more employees will be able to limit the amount of leave that an employee may take when they or a family member are a victim of a qualifying act of violence, or a crime victim who is appearing as a witness in court, as follows:

• Qualifying Act of Violence Victim: 12 weeks (total).

• Relocation or Enrolling a Child in a New School or Childcare when Family Member Is a Crime Victim (Non-Fatal): 5 days.

• Family Member Is a Crime Victim (Non-Fatal): 10 days.

If the absence would also qualify under the federal Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA), leave must run concurrently.

Additionally, who qualifies as a “family member” will change. Labor Code sections 230 and 230.1 use the term “immediate family member,” which includes a child, parent, spouse or domestic partner, sibling, or any other individual whose close association is the equivalent of a family relationship. Under new Government Code section 19245.8, the definition of “family member” will include a child, parent, grandparent, grandchild, sibling, spouse or domestic partner, or designated person (as noted above, the definition is slightly different from the HWHFA’s in that it means a person the employee identifies at the time they request leave that is related by blood or whose association with the employee is the equivalent of a family relationship).

Finally, after the Department of Civil Rights posts a model form online (which must occur on or before July 1, 2025), new Government Code section 19245.8 requires employers to inform employees in writing of their rights under the law at the time of hiring, annually, upon an employee’s request, and any time an employee informs an employer that they or their family member is a victim. Additionally, the notice must inform employees of:

• Disability or paid family leave benefits made available through the state that might be available;

• Leave under a separate bereavement leave law possibly being available upon the death of a family member who is a victim; and

• Their leave rights under other laws (Labor Code sections 230.2 and 230.5) to attend various court proceedings when they or a family member is a crime victim.

Employers will be able to use a state-created form, “Survivors of Violence and Family Members of Victims Right to Leave and Accommodations,” or they can develop their own if it is substantially similar in content and clarity to the state’s form. The state-created form will be made available in numerous languages other than English.

Agricultural Employees

Currently, in addition to “safe” time purposes, employees can use HWHFA leave for diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.

SB 1105 amends the HWHFA’s covered uses provision, Labor Code section 246.5(a), to require employers to allow use of paid sick leave so agricultural employees who work outside can avoid smoke, heat, or flooding conditions created by a local or state emergency proclaimed by the governor or local authority, including, but not limited to, when the employee’s worksite is closed due to the smoke, heat, or flooding conditions.

Interestingly, section 2 of SB 1105 says the amendment “does not constitute a change in, but is declaratory of, existing law to the extent that the sick days are necessary for preventive care.” The HWHFA does not define “preventive care” and, to date, in its FAQs the California Labor Commissioner has said “[p]reventive care would include annual physicals or flu shots.” Accordingly, the potential breadth of what “preventive care” means might surprise some and cause them to wonder what other reasons might qualify, generally or for employees who work outside.

An “agricultural employee” is defined under California Labor Code section 9110, i.e., a person employed in:

• An agricultural occupation (Wage Order 14 – any of the following occupations: 1) Preparation, care, and treatment of farm land, pipeline, or ditches, including leveling for agricultural purposes, plowing, discing, and fertilizing the soil; 2) Sowing and planting of any agricultural or horticultural commodity; 3) Care of any agricultural or horticultural commodity (includes, but is not limited to, cultivation, irrigation, weed control, thinning, heating, pruning, or tying, fumigating, spraying, and dusting); 4) Harvesting of any agricultural or horticultural commodity, including but not limited to, picking, cutting, threshing, mowing, knocking off, field chopping, bunching, baling, balling, field packing, and placing in field containers or in the vehicle in which the commodity will be hauled, and transportation on the farm or to a place of first processing or distribution; 5) Assembly and storage of any agricultural or horticultural commodity, including but not limited to, loading, road siding, banking, stacking, binding, and piling; 6) Raising, feeding and management of livestock, fur-bearing animals, poultry, fish, mollusks, and insects, including but not limited to herding, housing, hatching, milking, shearing, handling eggs, and extracting honey; 7) Harvesting of fish (Fish and Game Code section 45) for commercial sale; 8) Conservation, improvement or maintenance of such farm and its tools and equipment);

• An industry preparing agricultural products for the market, on the farm (Wage Order 13 – any operation performed in a permanently fixed structure or establishment on the farm or on a moving packing plant on the farm for the purpose of preparing agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy products for market when such operations are done on the premises owned or operated by the same employer who produced the products referred to herein and includes all operations incidental thereto); or

• An industry handling products after harvest (Wage Order 8 – any industry, business, or establishment operated for the purpose of grading, sorting, cleaning, drying, cooling, icing, packing, dehydrating, cracking, shelling, candling, separating, slaughtering, picking, plucking, shucking, pasteurizing, fermenting, ripening, molding, or otherwise preparing any agricultural, horticultural, egg, poultry, meat, seafood, rabbit, or dairy product for distribution, and includes all the operations incidental thereto).

Next Steps

Ensuring compliance with California laws is rarely a simple, straightforward task, and changes made by AB 2499 and SB 1105 help demonstrate why navigating California leave obligations – many of which overlap – can be particularly challenging. But given the industry-specific nature of SB 1105, and AB 2499’s largely incorporating pre-existing standards, for many employers their compliance mountain might feel more climbable (or at least not unclimbable), especially if they work with counsel over the next few months to review and revise policies to align with, and then educate staff on, the new standards. Employers might also consider monitoring the websites of the California Labor Commissioner – which enforces the HWHFA – and the Department of Civil Rights – which enforces the FEHA – for future guidance.