Tensions Mark End of Legislative Session Amid Unparalleled Year
This week, legislators gaveled down the two-year legislative session concluding an unparalleled year filled with tremendous uncertainty for Californians confronting a pandemic and an economic downturn.
With a compressed legislative schedule where the word “unprecedented” became part of the lexicon, there was no lack of tension over legislative and procedural issues as the hours of work extended late into the evening on August 31 before the session concluded.
To say that tensions ran high is an understatement. The year 2020 proved itself beyond compare and the last day of session was no different – from a newborn child on the Assembly floor in the middle of a pandemic, which led to an apology the next day from Speaker Anthony Rendon (D-Lakewood) for not approving a request to vote by proxy from the baby’s mother, Assemblywoman Buffy Wicks (D-Oakland), to chaos over in the Senate when a rules change to limit debate irked GOP senators, led to a long stalemate, and was later rescinded by Democrats.
In this “year that couldn’t be business as usual,” as Senate Leader Toni Atkins (D-San Diego) said, numerous policy measures were on the agenda ranging from COVID-19-related bills impacting agricultural workplaces to energy and wildfire measures with costly impacts, as well as an attempt by Attorney General Xavier Becerra to expand his authority.
The major bills Ag Council was involved with more recently are listed below, along with the outcome. Please note the overview does not encompass all measures Ag Council was involved in this year.
Any bills listed as approved by the Legislature are now pending on Governor Gavin Newsom’s desk, and he has until September 30 to sign or veto the bills.
Legislative Update
Workers’ Compensation
SB 1159 (Hill) – PASSED
This measure establishes a cluster-based outbreak presumption in order to trigger workers’ compensation. SB 1159 sunsets on January 1, 2023 and is no longer law upon that date.
Under the bill, workers’ compensation is triggered under the following circumstances:
* For employers with 100 or fewer employees – if four employees test positive for COVID-19 at a specific place of employment within a 14 day period, OR
* For employers with over 100 employees – if four percent of employees test positive for COVID-19 at a specific place of employment within a 14 day period.
Ag Councilremained concerned about 1) the potential for socially obtained, non-work infections being included within an “outbreak” at a place of employment, and 2) the need for a precise standard in the bill to rebut the legal presumption that COVID-19 infections were contracted in the workplace.
Given those remaining issues were not addressed, Ag Council did not formally support SB 1159. However, between the two bills under consideration by legislators, SB 1159 was clearly the more palatable choice over the worse alternative (see AB 196 explanation below).
It is anticipated that Governor Gavin Newsom will sign SB 1159.
AB 196 (Gonzalez) – STALLED
Ag Council vehemently opposed AB 196 and is pleased it did not move forward. This broad-sweeping measure would establish employer liability for all COVID-19 infections of essential workers in California, specifically including language to create a legal standard that could allow workers’ compensation coverage for illnesses contracted outside of the workplace.
In addition, the bill did not contain a sunset provision, so the bill would have remained in law in perpetuity if it passed.
COVID-19 Notification to Employees
AB 685 (Reyes) – PASSED
Mandates employers to provide written notice and instructions to employees who may have been exposed to COVID-19 at their worksite. Ag Council opposed AB 685 and participated in a coalition to pursue amendments to make the measure more feasible and provide more clarity.
On the positive side, the coalition helped garner the following amendments: the elimination of criminal penalties, removal of a 24-hour verbal notice of COVID-19 cases, and the deletion of a 90-day rebuttable presumption of retaliation, which equated employee discipline with retaliation.
Ag Council was compelled to continue to oppose the measure due to other outstanding concerns left unaddressed. In particular, AB 685 mandates the publication of information onto a state website tracking COVID-19 cases reported by workplace – regardless of whether the employer had a role in the infection or whether it was due to social spread.
Expanded Leave for Employees
AB 1383 (Jackson) – PASSED
SB 1383 significantly expands employee leave in California. Ag Council advocated against the bill because amendments from our business and ag coalition to limit the scope of the bill and make it more workable were not accepted.
The measure would impact employers with five or more employees by requiring 12 weeks of unpaid leave for every employee.For employers with 50 or more employees, SB 1383 vastly expands the amount of protected leave an employee may take — up to a half a year — by utilizing federal and state leave policies.
The bill also contains a private right of action where any misstep by an employer can lead to a costly lawsuit.
The governor already made a commitment to sign SB 1383 into law.
New Authority to the Attorney General
AB 6 (Reyes) – STALLED
California Attorney General (AG) Xavier Becerra forcefully pursued this last minute gut and amend bill to give the AG more authority, which Ag Council opposed, along with other groups.
Specifically, AB 6 would have provided independent authority to the AG to bring a civil action to enforce water pollution laws under the Fish and Game Code.
Currently, the AG is authorized to take action only once a complaint is received from the State Water Resources Control Board or the Department of Fish and Wildlife. The independent authority provided to the AG under AB 6 could have led to an entity facing both an administrative enforcement action by the Board and a simultaneous civil penalty action brought by the AG.
Given strong opposition to AB 6 from multiple fronts, the bill did not move forward.
Wildfire Mitigation – Ratepayer Fee
AB 1659 (Bloom) – STALLED
Ag Council worked with a coalition to advocate against this last minute wildfire mitigation bill to charge utility ratepayers $3 billion for certain projects. A good portion of the measure was not tied to utility infrastructure upgrades for wildfire prevention. Instead, the $3 billion would have funded projects, such as: workforce development, career pathways, cooling centers, water infrastructure upgrades, and funds to settle litigation for an environmental group, among other projects.
The $3 billion would have been in addition to the nearly billion dollars in costs approved by statute in 2019, which is funded by utility ratepayers to directly address utility-caused wildfires through infrastructure enhancements.
After a great deal of advocacy against the bill, the measure stalled.
Energy Efficiency Stimulus Program
AB 841 (Ting) –- PASSED
This measure takes funding from a state energy efficiency program paid for by ratepayers, including some of our members, to fund energy projects in schools for three years. Ag Council and others opposed the bill because it depletes much of the funds our members and other energy users could otherwise utilize for climate friendly projects.
The Department of Finance released an analysis stating AB 841 may cost ratepayers $456 million because the program must be backfilled again.
COVID-19 Outreach to Ag Employees
AB 2043 (Rivas) – PASSED
This measure underwent several iterations before the bill author accepted amendments offered by agricultural advocates. We appreciate the bill author in working to achieve this positive outcome.
As approved by the Legislature, AB 2043 requires CalOSHA to conduct an outreach campaign (Spanish radio & workplace signage) to ensure farmworkers know their available benefits for sick leave and workers’ compensation in California. The outreach campaign is limited to CalOSHA and the measure does not authorize access to worksites by a person who is not employed by CalOSHA.
The bill also states CalOSHA must routinely place on its website the final results of investigations relating to COVID-19 illnesses in ag workplaces.This action is already taken at the federal level.
Also, this section is not regarding complaints. It only applies to actual completed investigations, which is more limited.
Single-Use Plastic Packaging
SB 54 (Allen)/AB 1080 (Gonzalez) – FAILED
The legislation requires a statewide 75 percent reduction of the waste generated from single use plastic packaging through source reduction, recycling or composting by 2032.
Amendments in the bill related to food and agriculture include: an exception for on-farm packaging, adding a food/ag packaging expert on the advisory panel, an exception for a de minimis amount of non-recyclable plastic on a package, and a provision stating that CalRecycle shall not impose a requirement that conflicts with federal laws, regulations or guidance, such as the Food and Drug Administration and the United States Department of Agriculture.
The legislation failed to garner the votes needed to pass on the last day of session, and the issue will once against be considered in 2021.
H-2A Employees
SB 1102 (Monning) – PASSED
This measure mandates that employers provide H-2A employees information about their rights under California law. Ag Council joined with other ag groups to oppose SB 1102.
SB 1102 is not needed given that H-2A employees already have the same rights as domestic employees. Further, certain information described in the measure is presently furnished to H-2A employees, such as the employer’s name, address and phone number, among other details.
SB 1102 also disregards existing law as decided by the California Supreme Court relating to voluntary and mandatory travel time and employee compensation. Though agricultural groups sought amendments to SB 1102 to address this issue, the measure passed without the inclusion of those amendments.
What Happens Now?
The governor has until September 30 to sign or veto measures pending on his desk.