The following laws related to education were created or modified during the 2022 year and are already affecting or will affect California school districts in 2023 and beyond. If you have questions on any of these developments, contact your OMLO attorney or a member of the firm’s Education Practice Group.
General Education-Related Laws
Assembly Bill 2355 – Cyberattack Reporting
Assembly Bill 2355 (“AB 2355”) adds sections 35265, 35266, and 35267 to the California Education Code. Effective January 1, 2023, local educational agencies[1] (“LEAs”) will be required to report any cyberattack that affects more than 500 students or personnel to the California Cybersecurity Integration Center.
For purposes of AB 2355, LEA means a school district, county office of education, or charter school. A “cyberattack” is defined as either:
- any alteration, deletion, damage, or destruction of a computer system, computer network, computer program, or data caused by unauthorized access; or
- the unauthorized denial of access to legitimate users of a computer system, computer network, computer program, or data.
Additionally, AB 2355 requires the California Cybersecurity Integration Center to create a database to track cyberattack reports submitted by LEAs. On an annual basis, every January 1, the California Cybersecurity Integration Center must provide a report to the Governor and relevant policy committees summarizing the types and numbers of cyberattacks on LEAs, as well as the types and number of data breaches affecting LEAs that have been reported to the Attorney General.
AB 2355 will remain in effect until January 1, 2027.
Senate Bill 906 – School Safety: Homicide Threats
Senate Bill 906 (“SB 906”) adds sections 49390 through 49395 to the Education Code to address homicidal threats at schools.
Reporting Requirements – Homicidal Threats or Perceived Homicidal Threats
AB 906 requires “school officials” at any LEA serving pupils in grades 6-12, inclusive, as part of a middle school or high school, who are alerted to or observe any homicidal threat or perceived homicidal threat to immediately report such threat or perceived threat to law enforcement.
If two or more school officials have an obligation to report a homicidal threat or perceived homicidal threat, they can agree to file a single report with law enforcement. However, should the school official designated to make the single report to law enforcement fail to do so, any school official who has knowledge that the required report was not made must then make the report themselves.
For purposes of AB 906, “school official” means any certificated or classified employee and board member of a school district, county office of education, or charter school serving students in grades 6-12, whose official duties bring the individual in contact with pupils in any of grades 6-12 as part of a middle school or high school, on a regular basis.[2] AB 906 however, does not define what qualifies as having contact with pupils on a “regular basis.”
Although AB 906 will clearly apply to most certificated and classified personnel serving students in grades 6-12, whether board members will be obligated to report threats or perceived homicidal threats will depend on the amount of contact they have with students in grades 6-12. Nevertheless, given that LEAs are immune from civil liability for damages allegedly caused by, arising out of, or relating to the requirements of AB 906, school districts may want to encourage board members to report homicidal threats or perceived threats even if they arguably may not be required to make such reports.
The term “threat or perceived threat” is defined broadly as “any writing or action of a student that creates a reasonable suspicion that the student is preparing to commit a homicidal act related to school or a school activity,” and may include “possession, use, or depictions of firearms, ammunition, shootings, or targets in association with the infliction of physical harm, destruction, or death in a social media post, journal, class note, or other media associated with the pupil. It may also include a warning by a parent, pupil, or other individual.”[3]
Once law enforcement receives a report of a homicidal threat or perceived homicidal threat from a school official, the local law enforcement agency or school police must immediately investigate and assess the reported threat or perceived threat. Such investigation and assessment must include a review of the Department of Justice’s firearm registry and school site search, but only if the search is justified by reasonable suspicion.[4] School districts are required to support investigations by law enforcement of reported threats or perceived threats.
To ensure compliance with AB 906, school districts serving grades 6-12 should ensure all certificated and classified personnel, as well as board members, are aware of their new reporting obligations under AB 906 related to homicidal threats and perceived homicidal threats.
Annual Parental Notification Regarding Safe Storage of Firearms
Beginning with the 2023-24 school year, AB 906 also requires all LEAs, not just those serving grades 6-12, to include information about the safe storage of firearms in their annual notification to parents (or guardians).[5] The annual notice related to firearm safety must be informed by model content that the California Department of Education (“CDE”) is required to develop by July 1, 2023. The model content from the CDE must include information on California’s child access prevention laws and laws relating to the safe storage of firearms and must be evaluated every year.[6] The annual notice requirements related to firearm safety in AB 906 also satisfy the requirement for such notifications under Assembly Bill 452.
As noted above, AB 906 protects all LEAs, regardless of grade level served, from civil liability for damages allegedly caused by, arising out of, or relating to the requirements of the bill, including the reporting and annual parental notification requirements.[7]
Assembly Bill 408 – Homeless Children And Youths: Reporting
Assembly Bill 408 (“AB 408”) adds Sections 48851.3 and 48852.3 to the Education Code, requiring LEAs—defined to include a school district, county offices of education, charter school, or special education local plan area—to establish homeless education program policies that are consistent with specified state laws and use resources posted on the CDE’s website. Such policies must be updated at least every three years.
AB 408 also requires the LEA’s liaison for homeless children and youths and unaccompanied youths to provide training, at least annually, to employees regarding providing services to homeless students. LEA liaisons are also encouraged to offer such training to all other classified and certificated employees.
Finally, AB 408 requires the CDE to develop and implement a risk-based monitoring plan to review LEA compliance with state laws relating to students experiencing homelessness.
Assembly Bill 2085 – Mandated Reporting
Assembly Bill 2085 (“AB 2085”) amends the Child Abuse and Neglect Reporting Act (“Act”), which, among other things, requires persons employed in certain positions, i.e., mandated reporters, to report child abuse or neglect to the Department of Social Services.
AB 2085 amends Penal Code section 11165.2 to revise the definition of “general neglect” to mean “the negligent failure to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred but the child is at substantial risk of suffering serious physical harm or illness.” Accordingly, for a situation to constitute general neglect, the child must be at substantial risk of suffering serious physical harm or illness.
AB 2085 also specifically excludes a parent’s economic disadvantage from the definition of “general neglect.”
School districts should ensure the training provided to employees on mandated reporting includes the updated definition of “general neglect.”
Assembly Bill 2295 – Local Educational Agencies: Housing Development Projects
Assembly Bill 2295 (“AB 2295”) adds Section 65914.7 to the Government Code to allow property owned by an LEA to be used for employee housing development projects. Any such housing development projects must have at least 10 housing units, and the units must first be offered to the LEA’s own employees, then to employees of directly adjacent LEAs, then to local public employees, and finally to general members of the public.
The provisions of AB 2295 become effective on January 1, 2024, and sunset on January 1, 2033.
Student Health
Senate Bill 1479 – COVID-19 Testing in Schools: COVID-19 Testing Plans
Existing law appropriates funds to the California Department of Public Health (“CDPH”) for various programs related to the safe reopening of schools during COVID-19, allowing funds to be used for any purpose consistent with providing in-person instruction, including, but not limited to, COVID-19 testing.
Senate Bill 1479 (“SB 1479”) adds Sections 32096 and 32096.1 to the Education Code and requires CDPH to coordinate COVID-19 testing programs for school districts, county offices of education, and charter schools (“LEAs”) that are currently federally funded or organized under the California COVID-19 Testing Task Force. SB 1479 also authorizes the CDPH to provide supportive services, including technical assistance, vendor support, guidance, monitoring, and testing education, relating to COVID-19 testing programs.
In addition, SB 1479 requires LEAs serving grades K-12 to do the following:
- create a COVID-19 testing plan, or adopt the framework, that is consistent with guidance from CDPH[8];
- publish the testing plan on its website; and
- facilitate a simple process for parents and LEA to report all COVID-19 testing data to the CDPH or local health department.
While the COVID-19 testing plan does not require the provision of onsite testing or programs, SB 1479 does make the CDPH responsible for determining which COVID-19 tests are appropriate for use for the COVID-19 testing plans.
The requirements of SB 1479 are contingent on funding being made in the annual Budget Act or other statute for the purposes described in SB 1479. SB 1479 sunsets on January 1, 2026.
Assembly Bill 1810 – Pupil Health: Seizure Disorders
Assembly Bill 1810 (“AB 1810”) adds Sections 49468 through 49468.5, known as “The Seizure Safe Schools Act.”
Existing law permits students required to take medication during the regular school day to be assisted by the school nurse or other designated school personnel. AB 1810 expands this authority to allow LEAs, at the request of a parent or guardian of a student diagnosed with seizures, a seizure disorder, or epilepsy, to assign one or more employee volunteers at the student’s school to receive initial and annual refresher training regarding the emergency use of anti-seizure medication. AB 1810 mandates that the Superintendent of Public Instruction establish, by July 1, 2023, minimum standards of training for the administration of emergency anti-seizure medication, which must include recognition of seizure signs and symptoms and appropriate action steps to respond.[9]
After receiving such a parental request, LEAs must distribute at least once per school year, but not more than twice, a notice to all staff that includes the following information:
- A description of the volunteer request stating that the request is for volunteers to be trained to recognize and respond to seizures, including training to administer emergency anti-seizure medication to a pupil diagnosed with seizures, a seizure disorder, or epilepsy if the pupil is suffering from a seizure;
- A description of the training that the volunteer will receive;
- The right of an employee to rescind their offer to volunteer pursuant to this article; and
- A statement that there will be no retaliation against any individual for rescinding the individual’s offer to volunteer, including after receiving training.[10]
In addition, AB 1810 requires that LEAs notify parents or guardians requesting the seizure trainings that their student may be eligible for an individualized education program (“IEP”) or Section 504 accommodations.
Should a student diagnosed with seizures, a seizure disorder, or epilepsy suffer from a seizure, AB 1810 authorizes a school nurse or, if the school does not have a school nurse or the school nurse is not on-site or available, a volunteer who has been designated and received training regarding the emergency use of anti-seizure medication, to administer emergency anti-seizure medication to students. Before administering emergency anti-seizure medication, however, LEAs must first obtain a seizure action plan from the student’s parent or guardian. A seizure action plan means “a written, individualized health plan designed to acknowledge and prepare for the health care needs of a pupil diagnosed with seizures, a seizure disorder, or epilepsy.”[11]
Assembly Bill 2329 – Pupil Health: Eye Examinations: School Sites
Under existing law, the governing board of a school district must provide for adequate testing of the sight and hearing of all students enrolled in schools of the school district and identify the persons authorized to conduct the examination.
Assembly Bill 2329 (“AB 2329”) adds section 49455.5 to the Education Code, authorizing LEAs serving grades K-12 to enter a memorandum of understanding with a nonprofit eye examination provider, including a nonprofit mobile examination provider, to provide eye examinations to its students. Such examinations must be noninvasive and provided exclusively for the purpose of providing glasses. Examinations permitted under AB 2329 are intended to be supplemental and thus cannot replace other vision screening requirements.[12]
Before eye examinations for the sole purpose of providing eyeglasses are conducted, schools must notify all parents and guardians of the upcoming eye examination at the school site and provide a form for parents and guardians to opt out their child from receiving the eye examination. The CDE is required to develop and post on its website a sample opt-out form by March 1, 2023.
AB 2329 also provides that participating healthcare professionals are immune from civil and criminal liability, and immune from any disciplinary action from a professional licensing board, for providing authorized services without parent or guardian consent. Additionally, participating LEAs are given immunity from civil and criminal liability under AB 2329.[13]
Assembly Bill 58 – Pupil Health: Suicide Prevention Policies and Training
Assembly Bill 58 (“AB 58”) amends Education Code section 215, which requires the governing board of an LEA to adopt a student suicide prevention policy, specifically addressing procedures relating to suicide prevention, intervention, and postvention, and suicide awareness and prevention training for teachers.
By January 1, 2025, AB 58 requires LEAs to have reviewed and updated their policies on student suicide prevention and revised their training materials to incorporate best practices identified by the CDE’s model policy.
In addition, beginning in the 2024-25 school year, AB 58 encourages LEAs to provide suicide awareness and prevention training to the LEA’s teachers. By June 1, 2024, the CDE is required to develop and issue resources and guidance on how to conduct suicide awareness and prevention training remotely.
Assembly Bill 2508 – Pupil Services: Education Counseling
Under existing law, Education Code section 49600 authorizes a governing board of a school district to provide a comprehensive educational counseling program for all students, including academic counseling and counseling in certain areas.
Assembly Bill 2508 (“AB 2508”) amends Education Code section 49600 and was enacted as part of the state’s ongoing efforts to address the mental health crisis among California students by urging, rather than merely authorizing, governing boards to provide all students with access to a comprehensive educational counseling program.
AB 2508 revises and recasts the legislative intent provision on the services to be provided by school counselors to reflect current practices more accurately. Specifically, AB 2508 states that it is the legislative intent that the duties of school counselors include direct services to students, such as individual and group counseling, risk assessments, crisis response, and postsecondary educational services, as well as indirect services including positive school climate strategies, consultations, and referrals to public and private services.[14] AB 2408’s updated legislative intent also requires school counselors to provide high-quality career guidance at all grade levels.[15]
In addition, AB 2408 revises the definition of “educational counseling,” which was previously defined as “specialized services provided by a school counselor possessing a valid credential with a specialization in pupil personnel services (PPS) who is assigned specific times to directly counsel pupils.” AB 2408 now provides that “education counseling” means “specialized services provided by a school counselor possessing a valid credential with a specialization in pupil personnel services (PPS) who directly counsels pupils and implements equitable school programs and services that support pupils in their academic development, social emotional development, and college and career readiness.”[16]
The new, expanded definition of “educational counseling” underscores the legislature’s expectations related to the direct provision of services and equitable programming.
AB 2508 also provides that educational counseling duties may include advising pupils on promotion and graduation requirements, satisfying A-G requirements for admission to the University of California and California State University systems, providing financial aid information, providing mental and behavioral health services to reduce the stigma of such services, and providing training to staff in the recognition of mental health warning signs.
Student Discipline and Curriculum
Assembly Bill 740 – Foster Youth: Suspension and Expulsion
Assembly Bill 740 (“AB 740”) amends several sections of Education Code[17] to extend rights to notice of student discipline and participation in disciplinary proceedings to a foster child’s educational rights holder, attorney, and county social worker, and if the student is Native American, then to the tribal social worker and, if applicable, the county social worker.
Before a student is involuntarily transferred to a continuation school, existing law requires that a student’s parent or guardian must receive a written notice advising them of their rights. Under AB 740, if the student being involuntarily transferred is either a foster child or a Native American child, this required written notice of rights must now be given, as applicable, to the foster child’s educational rights holder, attorney, county social worker, or the Native American child’s tribal social worker and, if applicable, the county social worker. Additionally, the final written decision of an involuntary transfer be given to these same individuals.
AB 740 also gives a foster child’s educational rights holder, attorney, county social worker, and a Native American child’s tribal social worker rights and, if applicable, the county social worker, the right to receive suspension notices, expulsion notices, manifestation determination notices, involuntary transfer notices, and related documents and information.
In addition, AB 740 amends existing law to require that notice of a proposed change in placement of a student with exceptional needs must be given to the student’s educational rights holder, attorney, and county social worker if the pupil is a foster child, or to the tribal social worker and, if applicable, the county social worker, if the child is Indian.
AB 740 further amends existing law to require the governing board of a school district to provide notice of a decision to expel a foster child to the student’s educational rights holder, attorney, and county social worker, and notice of a decision to expel a Native American student to the student’s tribal social worker and, if applicable, the county social worker. Lastly, AB 740 requires the governing board of a school district that recommends the expulsion of a homeless child or youth, to provide notice of the expulsion hearing to the student’s LEA liaison for homeless children and youth.
Senate Bill 995 – Student Absences
Senate Bill 995 (“SB 995”) amends section 48205 of the Education Code to expand the list of recognized excused absences for middle school and high school students to include an absence to participate in a civic or political event. Students are permitted only one excused absence to participate in a civil or political event each school year and must provide advance notice to the school that they will be absent to attend a civil or political event.
School administrators have the discretion to authorize an additional excused absence to participate in a civic or political event.
Senate Bill 532 – Pupil Instruction: High School Coursework and Graduation Requirements: Exemptions and Alternatives
Senate Bill 532 (“SB 532”) amends several sections of the Education Code[18] to strengthen existing expanded opportunities for foster, homeless, and migrant students, as well as for former juvenile court school students and students in a military family (collectively, “mobile students”), to achieve a high school diploma.
Under SB 532, if an LEA determines that a mobile student is reasonably able to complete the LEA’s graduation requirements within a fifth year of high school, the LEA must consult with the mobile student and their educational rights holders about the option to enroll in a fifth year of high school. If an LEA determines a student is not reasonably able to complete the local graduation requirements within a fifth year, but is reasonably able to complete the statewide graduation requirements within the student’s fifth year of high school, until January 1, 2028, the LEA must provide an exemption from local graduation requirements and offer the option of a fifth year of high school to complete statewide coursework requirements.
SB 532 also amends existing law related to mobile students transferring between schools to require the efficient transfer of the student’s educational record and issue full credits or partial credits for completed coursework on the student’s official transcript.
Senate Bill 941 – Local Educational Agency Instruction Collaboration Agreements: Science, Technology, Engineering, and Mathematics (“STEM”): Dual Language Immersion Programs
Under existing law, the governing of two or more school districts may enter into an agreement (of up to five years) for the interdistrict attendance of students who are residents of the school districts, and, subject to certain limitations, allows school districts to accept students from other school districts by adopting a resolution to become a school district of choice.
Senate Bill 941 (“SB 941”) adds Section 48345 to the Education Code, authorizing the governing board of an LEA to enter into an agreement with one or more LEAs to offer the same or similar corresponding individual courses to students from other LEAs who have been impacted by disruptions, cancellations, or teacher shortages in STEM or dual language immersion programs.
LEAs who are parties to such agreements must accept students through an unbiased process that prohibits inquiry into, or evaluation or consideration of, specified student characteristics, including academic or athletic performance, proficiency in English, physical condition, any individual characteristics, e.g., race or gender, or family income. Additionally, if the number of students exceeds the number of available seats, LEAs must hold random drawings in public at a regularly scheduled board meeting.
Employment
Assembly Bill 2413 – Classified Employees
Under existing law, a permanent classified employee may only be disciplined for cause, as prescribed by rule or regulation of the governing board of the school district or community college district, or applicable collective bargaining agreement. Additionally, existing law authorizes the governing board of a school district or community college district to delegate its authority to determine whether sufficient cause exists for disciplinary action against a classified employee to an impartial third-party hearing officer, pursuant to the terms of the collective bargaining agreement.
Assembly Bill 2413 (“AB 2413”), amends Education Code section 45113 to prohibit the suspension without pay, suspension or demotion with a reduction in pay, or dismissal of a permanent classified employee of non-merit districts who timely requests a hearing on the charges against them before a hearing decision is issued, unless the governing board or the third-party hearing officer finds that, at the time the discipline was imposed, and at the conclusion of the Skelly process, the school district demonstrated by a preponderance of the evidence that the employee:
- Engaged in criminal misconduct;
- Engaged in misconduct that presents a risk of harm to pupils, staff, or property; or
- Committed habitual violations of the district’s policies or regulations.[19]
AB 2413 also amends the Education Code section to expressly permit a school district to place a classified employee on unpaid leave before a hearing decision is rendered after thirty (30) calendar days from the date the hearing is requested if a hearing on the charges will be conducted, either by the governing board or a third-party hearing officer.[20] This provision will provide some relief to school districts in instances where the process of conducting a hearing and issuing a decision take more than thirty (30) days.
While AB 2413 becomes effective on January 1, 2023, if the provisions of AB 2413 conflict with a collective bargaining agreement entered into before January 1, 2023, the requirements of AB 2413 will not apply until the current agreement expires or is renewed.[21]
Senate Bill 191 – Employee Orientations
Under existing law, public employers are generally required to provide exclusive employee representatives access to new employee orientations, with no less than ten (10) days’ advance notice. The details regarding structure, time, and manner of the exclusive representative’s access must be determined by mutual agreement of the representative and the employer. Existing law also prohibits the date, time, and place of new employee orientations from being disclosed to anyone other than the employees, the exclusive representative, or a vendor that is contracted to provide a service for purposes of the orientation.
Senate Bill 191 (“SB 191) temporarily amends the statutory provisions related to new employee orientation to address situations where orientations may be impacted by remote work arrangements or public health restrictions.
Specifically, SB 191 amends Government Code section 3556 to provide that if a public employer has not conducted an in-person new employee orientation within thirty (30) days of a new employee’s start date, and the new employee is working in person, the exclusive representative has a right to schedule an in-person meeting at the worksite during work hours. After receiving a request for such a meeting, employers must provide a meeting space on-site within seven (7) days. Newly hired employees must be relieved of their duties and given up to thirty (30) minutes of paid time to meet with the exclusive representative. Employers may agree, but are not required, to provide new employees with more than thirty (30) minutes of paid time to meet with their exclusive representative.
In addition, SB 191 provides that if the state or a local public health agency issues an order limiting the size of gatherings, the exclusive representative may schedule multiple meetings to ensure that newly hired employees can attend without exceeding the maximum allowable number of people. If the order prohibits all gatherings, the exclusive representative may schedule a meeting once the order is lifted or modified to permit gatherings. SB 191 permits employers and the exclusive representative to mutually agree to waive or modify certain specified requirements.
The additional provisions related to new employee orientations outlined above became effective on June 30, 2022, and they will remain in effect until June 30, 2025.
Senate Bill 931 – Deterring Union Membership: Violations
Senate Bill 931 (“SB 931”) adds section 3551.5 to the Government Code to allow employee organizations to file a claim with the Public Employment Relations Board (“PERB”) alleging a violation of Government Code section 3550, which prohibits public employers from deterring or discouraging public employees from becoming or remaining members of an employee organization, or from authorizing representation by an employee organization, or authorizing dues or fee deductions to an employee organization.
If PERB finds a violation of Government Code section 3550 has occurred, SB 931 provides that the public employer is to be fined an amount of up to $1,000 for each affected employee, not to exceed $100,000 in total. Additionally, SB 931 expressly provides that when the employee organization is the prevailing party, the employee organization shall be awarded attorneys’ fees and costs, unless PERB finds the claim frivolous, unreasonable, or groundless when brought.
SB 931, however, does not include a provision for employers to recover attorneys’ fees and costs when they are the prevailing parties.
Assembly Bill 2188 – Off-Duty Use of Marijuana and Adverse Employment Actions
Assembly Bill 2188 (“AB 2188”) amends the California Fair Employment and Housing to prohibit discrimination by employers based on a person’s personal use of cannabis off the job and away from the workplace. AB 2188 does not take effect until January 1, 2024.
AB 2188 adds section 12954 to the Government Code, which prohibits employers from discriminating against a person in hiring, termination, or any term or condition of employment based on: 1) the employee’s use of cannabis off the job and away from the workplace; and 2) an employer-required drug screening test that finds the presence of non-psychoactive cannabis metabolites. In making employment decisions, however, employers may consider the results of a scientifically valid pre-employment drug screening test that does not screen for non-psychoactive cannabis metabolites.
AB 2188 does not permit employees to possess, be impaired by, or use cannabis on the job, or otherwise impact an employer’s right to maintain a drug and alcohol-free workplace. Accordingly, AB 2188 will not prohibit reasonable suspicion-based drug testing for cannabis use suspected on while on duty.
AB 2188 does not apply to applicants or employees hired for positions that require testing for controlled substances under state or federal law, such as employees subject to the Department of Transportation drug testing regulations, or as a condition of receiving federal funding.
Before AB 2188 takes effect on January 1, 2024, employers will need to review and revise their drug testing policies and practices and consider whether scientifically valid pre-employment drug screening tests that do not screen for non-psychoactive cannabis metabolites are available.
Senate Bill 731 – Criminal Records: Relief
Senate Bill 731[22] (“SB 731”) provides for the automatic sealing of conviction and arrest records for most ex-offenders who are convicted of another felony for four years after completing their sentence and any parole or probation. SB 731, however, does not apply to registered sex offenses or convictions for serious and violent felonies.
SB 731 also amends Education Code sections 44242.5 and 44346 to prohibit convictions for possession of specified controlled substance offenses that are more than five years old and where relief has been granted from being presented to the Commission on Teacher Credentialing (“CTC”) or being the sole basis to deny a credential.
In addition, SB 731 amends the Education Code section to prohibit the Department of Justice from disseminating information for a conviction for possession of specified controlled substances if the conviction is more than five years old and relief has been granted.
Assembly Bill 1041 – Employment: Leave
The California Family Rights Act (“CFRA”) provides job-protected leave to eligible employees for their own serious health conditions or to care for a family member with a serious health condition.
Assembly Bill 1041 (“AB 1041”) amends Government Code section 12945.2 and Labor Code section 245.5 to expand the class of people for whom an employee may take leave to provide care for, to include a “designated person.” AB 1041 defines “designated person” as any individual related by blood or whose association with the employee is the equivalent of a family relationship.
Employees may identify the “designated person” at the time of requesting leave. However, employers are permitted to limit an employee to one designated person per 12-month period.
In addition, AB 1041 amends Labor Code section 245.5 to add “designated person” to the list of “family members” an employee may take paid sick leave to care for under the Healthy Workplaces, Healthy Families Act.
For purposes of paid sick leave, the term “designated person” means “a person identified by the employee at the time the employee requests paid sick days.” Notably, unlike the definition of designated person under the CFRA, the designated person needs to be related by blood or affinity or be “the equivalent of a family relationship.” As under the CFRA, employers are permitted to limit an employee to one designated person per 12-month period for paid sick days.
As 2023 begins, employers will need to review and revise their CFRA and sick leave policies and practices to allow employees to take leave to care for a designated person.
Assembly Bill 551 – Disability Retirement
In response to the ongoing COVID-19 pandemic, the legislature established a temporary presumption in 2021 for members of various public employee retirement systems that a disability retirement arose out of employment if the retirement was based at least in part on COVID-19-related illnesses.
This presumption applies to firefighters, public safety employees, certain healthcare workers, and any public employee retirement system member who is not employed in one of the enumerated classifications, but who tests positive for COVID-19 during an outbreak at the member’s specific place of employment.
Assembly Bill 551 extends this COVID-19 presumption related to disability retirement through January 1, 2024.
Assembly Bill 1655 – State Holidays: Juneteenth
On June 17, 2021, President Biden signed legislation into law that established June 19, known as “Juneteenth,” as a federal holiday. Questions quickly arose over whether, under the Education Code, Juneteenth automatically became a holiday for California’s community college and K-12 employees. Assembly Bill 1655 (“AB 1655”) was passed to resolve this issue and officially added Juneteenth to the list of California state holidays.[23]
Specifically, AB 1655 amends the Education Code to provide that, for purposes of public school holidays, “days appointed by the President” includes “the President signing into law legislation that creates a nationwide federal holiday, including the legal public holidays listed in subsection (a) of Section 6103 of Title 5 of the United States Code, but does not include Columbus Day.” [24]
With the passage of AB 1655, Juneteenth is now a holiday for all community colleges and K-12 districts. This means that, beginning in 2023, Juneteenth will be a paid holiday for all probationary and permanent classified employees in paid status during any portion of the working day immediately before or after the holiday, and that any classified employees required to work on Juneteenth must receive holiday pay.
Assembly Bill 1801 – State Holidays: Genocide Remembrance Day
Assembly Bill 1801 (“AB 1801”) adds April 24, known as “Genocide Remembrance Day,” to the list of state holidays and amends sections of the Education Code[25] to authorize, but does not require, community colleges and public schools to close on April 24.
While school districts may receive requests from employee unions to include Genocide Remembrance Day as a paid school holiday, school districts have discretion over whether to agree to recognize Genocide Remembrance Day.
Senate Bill 1487 – Commission on Teacher Credentialing: Survey: Teacher Resignations
Senate Bill 1487 (“SB 1487”) adds section 44223 to the Education Code, requiring the Commission on Teacher Credentialing (“CTC”) and the CDE to develop a survey by July 1, 2023, to collect data from teachers who are resigning their positions or electing not to accept a teaching assignment for the upcoming school year, including data on whether they are exiting the profession. In addition, the CTC is required to prepare an annual report with the resignation data. The annual report must be submitted to the CDE and legislature and posted on CTC’s website.
Beginning with the 2023-2024 school year, SB 1487 encourages LEAs to administer the survey within 15 days of resignation or election to not accept a teaching assignment, and to report the survey results to the CTC annually. The purpose of the survey is to gather data to be used to examine future statewide investments in teacher recruitment and retention efforts.
Governance
Assembly Bill 2449 – Open Meetings: Local Agencies: Teleconferences
Assembly Bill 2449 (“AB 2449”) temporarily amends the Brown Act to establish an additional teleconferencing option, allowing members of a legislative body to participate remotely for “just cause” or in “emergency” circumstances.[26] AB 2449 will be in effect between January 1, 2023, and January 1, 2026.
AB 2449 defines a “just cause” as any of the following circumstances:
- A childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely;
- A contagious illness that prevents a member from attending in person;
- A need related to certain statutorily defined forms of physical or mental disability; or
- Travel while on official business of the public agency or for another state or local agency.
Notably, AB 2449 limits members to a maximum of two (2) times per calendar year to invoke the “just cause” exception to in-person participation.
Under AB 2449, an “emergency circumstance” is defined to mean a “physical or family medical emergency that prevents a member from attending a meeting in person.” To invoke the “emergency circumstance” exception, the requesting member, as soon as possible, must request that the legislative body allow him/her to participate remotely due to a specified “emergency circumstance.” In turn, the member’s legislative body must take action to approve the request at the earliest opportunity and must request a general description (not exceeding 20 words) that describes the circumstances relating to the requesting member’s “emergency.”
The requesting member is not, however, required to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law.
The member must make a separate request for each meeting in which he/she seeks to participate remotely under the “emergency circumstance” exception. Participation via teleconference under the “emergency circumstance” exception does not count toward the two-meeting limitation applicable to the “just cause” exception to in-person participation.
If a member has a qualifying “emergency” or “just cause” circumstance, to participate remotely, the member must also do both of the following:
- The member must publicly disclose at the meeting before any action is taken, whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member’s relationship with any such individuals; and
- The member must participate through both audio and visual technology.
A member’s remote participation may not exceed (i) three consecutive months, or (ii) 20% of a legislative body’s regular meetings within a single calendar year. Also, if the legislative body regularly meets fewer than 10 times per calendar year, a member’s participation from a remote location cannot be for more than two meetings in total.
To avail itself of the teleconferencing rules established under AB 2449, a public agency must comply with the following meeting requirements:
- A quorum of the members of the agency’s legislative body must participate in person from a singular physical location identified on the agenda.
- AB 2449 does not spell out how to resolve instances when multiple members wish to avail themselves of the “just cause” or “emergency circumstance” exceptions at the same time and in excess of the number of members who may participate remotely at any given meeting. Accordingly, it may be advisable to establish policies for resolving these situations (e.g., establishing a “first come first serve” policy, etc.).
- The legislative body must provide either (i) a two-way audiovisual platform, such as Zoom or WebEx, which allows the meeting to be viewed and heard from a remote location, or (ii) a two-way telephonic service and a live webcasting of the meeting. This requirement may be satisfied with any combination of platforms that allows the meeting to be viewed and heard from a remote location.
- The agenda must give notice of the means by which members of the public may access the meeting and offer public comment; and
- The meeting must be paused (and no action may be taken), if the broadcasting platform, either audio or visual, is interrupted.
AB 2449 establishes teleconferencing procedures that are not as stringent or involved as traditional, pre-COVID procedures, but not as relaxed as those afforded under AB 361 when a declared state of emergency and other requirements of AB 361 are in place. It should be noted that AB 2449 does not do away with traditional teleconferencing procedures, which will remain in place after AB 361 and AB 2449 sunset on January 1, 2024, and January 1, 2026, respectively. Between January 1, 2023, and January 1, 2026, when a member wishes to participate remotely, public agencies should evaluate, depending upon the specific circumstances, which teleconferencing rule(s) may be applicable.
Senate Bill 1100 – Open Meetings: Orderly Conduct
Senate Bill 1100 (“SB 1100”) codifies the standard set forth by the Ninth Circuit in Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800, in which the court held that an ordinance governing the decorum of a city council meeting is not facially overbroad if it permits a presiding officer to eject an attendee for actually disturbing or impeding a meeting.
Accordingly, SB 1100 adds section 54957.95 to the Government Code and permits the presiding member of a legislative body conducting a meeting, or their designee, to remove or cause the removal of an individual who is disrupting the meeting. Prior to the removal, the presiding member or their designee must warn the individual that their behavior is disrupting the meeting and that their failure to stop the disruptive behavior will result in removal.
The advance warning is not required if the disruption consists of engaging in behavior that constitutes use of force or a true threat of force, i.e., one that has sufficient indicia of intent and seriousness, that a reasonable observer would perceive to be an actual threat to use force.
SB 1100 will become effective on January 1, 2023.
Assembly Bill 2647 – Local Government: Open Meeting
The Ralph M. Brown Act (“Brown Act”) currently requires that writings related to an agenda item distributed to a majority of the members of a legislative body less than 72 hours before a meeting be made available for public inspection at a public office or location at the time the writing is distributed. Additionally, the agenda for the meeting must list the address of the office or location where such written material is available.[27]
Assembly Bill 2647 (“AB 2647”) amends the Brown Act to clarify that the posting requirement for writings distributed to the legislative body less than 72 hours before a public meeting may be satisfied by posting the documents online at the time they are distributed, so long as physical copies of the documents are made available for public inspection at the beginning of the next regular business day at the designated public office. To comply with the Brown Act and AB 2647, the local agency must meet all of the following requirements when posting the materials online:
- An initial staff report or similar document containing an executive summary of the agenda item and the staff recommendation, if any, relating to that item must be made available for public inspection at the designated office or location at least 72 hours before the meeting;
- The agency must immediately post the writing on its website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting;
- The agency must list the web address of the agency’s internet website on the agendas for all meetings of the legislative body of that agency; and
- The agency must make physical copies available for public inspection, beginning the next regular business hours for the local agency, at the designated office or location. This requirement is satisfied only if the next regular business hours of the local agency commence at least 24 hours before that meeting.
AB 2647 does not alter the requirement that writings distributed during a public meeting must be available for public inspection at the meeting if they were prepared by the agency or a member of the legislative body, or after the meeting if prepared by someone else.
Senate Bill 1439 – Campaign Contributions: Agency Officers
Senate Bill 1439 (“SB 1439”) significantly impacts campaign contributions to local elected officials and gives rise to new potential conflicts of interest. Effective January 1, 2023, SB 1439 extends existing prohibitions on campaign contributions to local agency bodies whose members are elected, such as city councils, school district board members, and county boards of supervisors.
In addition, this regulation expands the timeframe prohibiting specific contributions following an elected or nonelected official’s action from three months to 12 months.
Existing law prohibited members of nonelected bodies, such as planning commissions, from accepting, soliciting, or directing a contribution of more than $250 from any party while a proceeding is pending before the agency and for three months following the date a final decision is rendered in the proceeding. Elected legislative bodies, such as city councils, county boards of supervisors, and the Legislature were excluded from these provisions unless the officer served on a specific board or commission.
Beginning January 1, 2023, however, local elected officers will be prohibited from accepting, soliciting, or directing a contribution of more than $250 from any party while a proceeding involving a license, permit, or other entitlement pending before the agency to cover elected officials, and for 12 months following the date a final decision is rendered in the proceeding if the officer knows or has reasons to know that the participant has a financial interest.
For purposes of SB 1439, a proceeding involving a “license, permit, or other entitlement for use” means all business, professional, trade, and land use licenses and permits and all other entitlements for use, including all entitlements for land use, all contracts (other than competitively bid, labor, or personal employment contracts), and all franchises.
SB 1439 also imposes the following disclosure and recusal requirements on local elected officials:
- Disclose and Recuse: Prior to rendering any decision in a proceeding pending before an agency that involves a license, permit, or other entitlement for use, including certain contracts, each officer who received a contribution over $250 within the preceding 12 months from a party or participant in the proceeding must disclose that fact on the record of the proceeding. After disclosing the fact on the record, the officer should recuse themselves and shall not make, participate in making, or in any way attempt to use the officer’s official position to influence the decision in a proceeding pending before the agency if the officer knows or has reason to know that the participant has a financial interest in the decision.
- Return and Participate: If an officer receives a contribution that would otherwise require disqualification and returns the contribution within 30 days from the time the officer knows, or should have known, about the contribution and the proceeding involving a license, permit, or other entitlement for use, the officer shall be permitted to participate in the proceeding.
- Entities Doing Business with Elected Bodies Disclosure and Prohibition Requirements: A party to a proceeding before an agency involving a license, permit, or other entitlement for use shall disclose on the record of the proceeding any contribution in an amount of more than $250 made within the preceding 12 months by the party or the party’s agent. In addition, the party or participant shall not make a contribution of more than $250 to any officer of that agency during the proceeding and for 12 months following the date a final decision is rendered by the agency in the proceeding. When a closed corporation is a party to or a participant in a proceeding involving a license, permit, or other entitlement for use pending before an agency, the majority shareholder is subject to the disclosure and prohibition requirements specified in this section.
Under AB 1439, both elected and nonelected officers who accept, solicit, or direct a contribution of more than $250 during the 12 months after the date a final decision is rendered in a proceeding involving a license, permit, or other entitlement for use, may cure the violation by returning the contribution or the portion exceeding $250 within 14 days of accepting, soliciting, or directing the contribution, whichever comes latest. However, an elected or nonelected officer is permitted to cure such a violation only if the officer did not knowingly and willfully accept, solicit, or direct the prohibited contribution, and requires the officer or the officer’s controlled committee to maintain records of curing the violation.
Finally, the Fair Political Practices Commission has determined that SB 1439 is not retroactive; thus, 2022 campaign contributions will not be subject to these new rules.
[1] Unless stated otherwise, the term local educational agency or LEA in this 2023 legislative update means a school district, county office of education, or charter schools.
[2] Ed. Code, § 49390(d).
[3] Ed. Code, § 49390(e).
[4] Ed. Code, § 49394.
[5] Ed. Code, § 49394
[6] Ed. Code, § 49391.
[7] Ed. Code, § 49395.
[8] CDPH is not required to approve or review COVID-19 testing plans that are consistent with framework before such plans are published.
[9] Ed. Code, § 49468.2(c).
[10] Ed. Code, § 49468.2(d)(1).
[11] Ed. Code, § 49468.1(d).
[12] Under Education Code section 94955, upon a student’s enrollment in elementary school and at least every third year thereafter until 8th grade, the student’s vision must be appraised by a school nurse or other authorized person.
[13] Ed. Code, § 94955.5(c).
[14] Ed. Code, § 49600(c)
[15] Ed. Code, § 49600(d)
[16] Ed. Code, § 49600(b).
[17]AB 740 amends Education Code sections 47605, 47605.6, 48432.5, 48853.5, 48911, 48915.5, and 48918.1.
[18] SB 532 amends Education Code sections 49069.5, 51225.1, and 51225.2.
[19] Ed. Code, § 45113(f)(1).
[20] Ed. Code, § 45113(f)(2).
[21] Ed. Code, § 45113(f)(3).
[22] SB 731 amends Education Code Sections 44242.5 and 44346, and amends Sections 1203.41 and 11105, and amends, repeals, and adds Sections 851.93 and 1203.425 of, the Penal Code.
[23] AB 1655 amends multiple Sections 37220, 45203, 79020, and 88203 of the Education Code.
[24] Education Code section 37222 establishes holidays for K-12 school districts, and Education code section 79020 establishes holidays for community college districts. Both sections of the Education Code include the same language regarding the definition of “days appointed by the President.”
[25] AB 1801 amends Education Code sections 37220.7, 45203, 79020, and 88203.
[26] AB 2449 amends Government Code sections 54953 and 54954.2.
[27] Gov. Code, § 54957.5