Opposing a proposed bereavement leave on business owners is among the National Federation of Independent Business (NFIB)’s priorities for the current 2021-2022 legislative session, which ends Sept. 10.
If passed, Assembly Bill (AB) 95, would require an employer with fewer than 25 employees to grant a request by any worker to take up to 3 business days of leave for bereavement.
“We just think this just adds more frustration and bureaucracy to what is already the most generous leave programs in the country,” said John Kabateck, California state director for the NFIB. “The other problem we have with it is that the bill fails to define what bereavement leave is, which leaves it open to abuse.”
AB 95, introduced by Evan Low (D-San Francisco), would also create a new civil action and an entitlement to attorneys’ fees.
“Because there is no clear definition of bereavement, trial plaintiff's attorneys will have a field day with this bill as it authorizes a new private right of action, which will again incentivize litigation against employers,” Kabateck told the Southern California Record.
AB 95 was approved by the Labor and Employment Committee and was referred to the suspense file in the Assembly Committee on Appropriations on April 21.
The purpose of referring a bill to the Suspense File, according to media reports, is to create a task force, commission, workgroup, a report, or a study.
“We are finding that most employers are already making leave programs available to their employees,” Kabateck said. “So, this is clearly just a catering to once again, by the author of the bill, two special interest groups that he caters to politically, which is labor unions and attorneys.”
Some 73% of business owners already offer Paid Time Off (PTO) benefits that can be used for any type of leave, according to NFIB data, and Kabateck adds mandated policies would only pile on the costs.
“We recognize that a lot of plaintiff's attorneys out there have been struggling in this economy and they now see twisting laws like these in their favor will only help them gain a buck and does nothing to support employees,” Kabateck said in an interview.
Another NFIB priority is opposing Senate Bill (SB) 606, which would broaden the Division of Occupational Safety and Health (Cal/OSHA)’s range of enforcement into the Labor Code as well as the Health and Safety Code as it relates to COVID-19.
As of April 24, California had 3,627,885 confirmed coronavirus cases, resulting in 60,135 deaths, according to the state’s COVID-19 dashboard.
SB 606, if approved, would create anti-retaliation protections that will lead to litigation against employers, according to a March 31 opposition letter written by the California Chamber of Commerce.
“Unlike corporations, the average small business owner doesn't have a legal team, legal resources, or the ability to defend themselves properly,” Kabateck said. “Taxes and regulations can seriously injure a small business but one frivolous lawsuit will put small owners out of business permanently. We've seen that before.”
Senator Lena A. Gonzalez (D- Long Beach), who introduced the bill, said in a press release that SB 606 would keep workers safe from COVID-19 exposure but the California Chamber of Commerce’s opposition letter states that SB 606 Is Not COVID-19-Related.
“All of SB 606 appears aimed at COVID-19 but only two specific lines are actually tied to COVID-19, which is two of its four presumptions of retaliation,” wrote Robert Moutrie, policy advocate for the California Chamber of Commerce. “The majority of its changes must be considered with the long-term in mind – and, in that lens, we believe they are not appropriate.”
The opposition letter was signed by multiple organizations such as NFIB, the California Travel Association, the California Farm Bureau, and the Civil Justice Association of California.
Kabateck said the NFIB would rather see AB 247 enacted.
If approved, AB 247 would exempt a small business with 100 or fewer employees from liability for an injury or illness to a consumer as a result of the coronavirus based on a claim that the consumer contracted the coronavirus while at that small business or due to the actions of that small business.
AB 247 was pending in the Judiciary Committee but its hearing was canceled.
“We actually had a glimmer of hope last week that it was going to get set on the judiciary committee's agenda in the legislature,” Kabateck said. “We got word, unfortunately, that it was a typo and they decided not to set it again. We're sorely disappointed.”