On October 8, 2023, California Governor Gavin Newsom vetoed Senate Bill (SB) No. 731. If enacted into law, SB 731 would have required employers to provide at least 30 calendar days’ advance written notice before requiring employees working from home to return to work in person. In addition, the proposed law would have required employers to notify employees of “their right to request continuing to work remotely as a reasonable accommodation for a disability.”

Quick Hits

  • Governor Newsom vetoed SB 731, stating that its 30-calendar-day advance written notice was inflexible and ignored employers’ particular needs to have staff on-site.
  • If signed into law, SB 731 would have expanded the California Fair Employment and Housing Act to add Section 12940.2 to the Government Code.
  • The notice would have explained an employee’s right to continue working remotely as a reasonable accommodation if the employee has a covered disability and the request does not create an undue hardship for the employer.

Background

Many employees have become accustomed to working remotely since the COVID-19 pandemic started in 2020. A December 2022 study on working from home trends in the United States reported that about 13 percent of full-time employees worked fully remotely, while 29 percent worked in a hybrid arrangement. A nonpartisan think tank focused on California reported similar figures around the same time, with 16 percent of employed adults in California working full-time at home or remotely, while 19 percent worked in a hybrid arrangement. However, 29 percent of employed adults wanted to work at home or remotely full-time while 32 percent expressed interest in hybrid arrangements. Moreover, 51 percent indicated a willingness to change jobs if they could work from home more often and 49 percent were open to changing the type of work they did to work from home more often.

Proposed Changes

On February 17, 2023, State Senator Angelique Ashby (D-8) introduced SB 731 to expand fair employment protective measures under the California Fair Employment and Housing Act (FEHA). SB 731 proposed to add a new Section 12940.2 to the Government Code, which would have required employers to provide a written notice with the following text:

You have the right to ask your employer to allow you to continue working remotely as an accommodation if you have a disability. Your employer is required to engage in a timely, good faith, interactive process to determine if there are effective reasonable accommodations for your disability, including working remotely. If you are able to perform all of your essential job functions while working remotely, your employer must grant your request unless it would create an undue hardship for your employer, an alternative reasonable accommodation is available, or you do not meet the definition of disability under the law. You can learn more about your rights at https://calcivilrights.ca.gov/accommodation/.

In addition, the bill would have affirmed that the proposed Government Code Section 12940.2 did not diminish employers’ existing obligation to reasonably accommodate employees with disabilities or authorize employers to remove or otherwise change existing reasonable accommodations.

Veto Message

Governor Newsom declined to sign SB 731 into law, citing employers’ business needs. His message called the 30-calendar-day advance notice requirement “inflexible” and stated that it “would not take into account the needs of any particular employer.” Governor Newsom recognized that businesses “may have limited employees to staff in-person positions.” He concluded his message by highlighting that “the 30-day advance notice requirement of return-to-work could be impractical, especially in times of critical need or emergencies.”

Looking Ahead

The governor’s veto message signaled support for a “reasonable advance notice by employers, where feasible, to employees of return to work requirements, in order to allow for employees to prepare for the change.” The message also opined that employers’ current obligation to reasonably accommodate employees with disabilities “includes the possibility that working from home could be a reasonable accommodation in appropriate circumstances.” In essence, the governor’s veto message suggested that he might sign a similar bill if the legislation required a shorter advance notice and exempted certain employers from providing any advance notice.

For the latest information on California’s labor and employment law landscape, please join us for our upcoming webinar, “California Legislative Update: A Busy 2023 Brings Big Changes for Employers,” which will take place on Monday, October 30, 2023, from 11 a.m. to 12 noon (PDT). The speakers, Christopher W. Olmsted and Charles L. Thompson, IV, will discuss the key takeaways from this and other new California laws. Register here.

Ogletree Deakins will continue to monitor California legislative developments and will provide updates on the California, Leaves of Absence, and Return to Work blogs as additional information becomes available.

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