Wildfires have burned through Southern California and Northern California is no stranger to wildfires. These calamities pose unique challenges for employers in workplace safety, legal compliance, and operational disruptions. Employers should be keenly aware of the laws that will apply to their ravaged businesses and employees. Here is an abbreviated list of the legal issues employers need to consider to remain legally compliant during and following these disasters:
Workplace Safety and Health
Cal/OSHA requires employers to protect employees from workplace hazards, including those arising during natural disasters. This includes protecting employees from wildfire smoke exposure whenever the Air Quality Index (AQI) for PM2.5 exceeds 151.
High wind alerts and varying conditions put the onus on employers to be vigilant and well-informed. This requires employers to ensure that the AQI of any worksite affected by wildfire is regularly monitored prior to and throughout each work shift.
Employers are required to provide respirators to all employees (and encourage their use) for all worksites experiencing an AQI of 151-500.
Employers need to stay informed about local evacuation orders and must clearly communicate to employees how such orders impact reporting to work and the business. For those who work near evacuation sites, Employers must provide all necessary personal protective equipment, implement flexible schedules, identify evacuation routes, and consider telecommuting arrangements for their employees.
Wage and Hour Compliance
Nonexempt Employees
Employers must track and compensate nonexempt employees for all hours worked, even during disruptions. This requires that Employers ensure employees are paid for additional hours worked while navigating operational changes.
Timekeeping Record Unavailability
If an Employer’s timekeeping records are lost or rendered unusable due to the calamity, the employee’s hours worked must be re-established so that the employees receive timely compensation. Employers should work with employees to confirm their hours during the affected period, and, ideally, obtain related written confirmation.
Reporting Time Pay
California law requires Employers to compensate employees who report to work but are sent home early. However, this obligation does not apply in cases where work interruptions result from “Acts of God” or other uncontrollable events, such as wildfires.
Split-Shift Premiums
Some Employers may find the need to send employees home early and asking them to return early in the day. In those situations, Employers may owe employees a split shift premium (one hour of pay at the state minimum wage.)
On-Call Employees
If an employee is on-call (and under the Employer’s control) during the calamity, they must be compensated for that time.
Business Closure
If a business remains closed for a period of time, nonexempt employees do not need to be paid for their remaining scheduled shifts unless they perform work.
Exempt Employees
Exempt employees are entitled to their full salary for any week in which they perform work, even if workplace disruptions occur. However, Employers are not required to pay exempt employees for full-week closures during which the employee does no work.
Telecommuting Arrangements
Employers may consider employee requests for remote work arrangements while the calamity plays out. Some of those requests may fall under a request for reasonable accommodation.
Leaves of Absence And Accommodation Issues
Leave Entitlement
Employees affected by a disaster may qualify for leave under the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA). Covered reasons include serious health conditions caused by wildfire smoke or injuries, and the need to care for impacted family members.
Employees involved in disaster relief may also have specific work protections under California law. Employers should be familiar with applicable state and local provisions to ensure compliance while supporting employees in need.
Accommodation Requests
Conditions created by a disaster may create the need for an accommodation under the Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA). Such calamities may impact employees’ physical or mental health, leading to workplace restrictions. Employers should engage in the same interactive process like all other times an employee requests a reasonable accommodation for a medical condition.
Sick Leave and Paid Time Off
Employees in California may use accrued sick leave for absences related to the disaster, provided the reason aligns with a permissible use under the law, such as addressing health concerns or caring for a family member. Additionally, employees may opt to use paid leave under the company’s vacation or paid time off (PTO) policy, if the policy permits or if the Employer allows it. Employers must keep employees informed about their leave entitlements and any workplace changes resulting from the disaster to ensure compliance and support during the disaster.
Reduction In Force Issues
Employers who are forced to reduce staff or temporarily shut down due to a disaster should assess their obligations under the California Worker Adjustment and Retraining Notification (Cal-WARN) Act. While Cal-WARN generally requires 60 days’ notice of mass layoffs or closures, the law exempts employers in cases of “physical calamity.” Employers must still communicate transparently with employees and document efforts to comply with legal requirements.
Looking Ahead
Employers will continue to face many unprecedented challenges when a disaster hits. Employers in need of assistance in managing these challenges should consult with qualified business attorneys to help navigate the unique legal issues posed by a disaster that affects them, their employees and their customers.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
