As California wildfire season becomes extended and government and utilities struggle to cope with the severe danger to people and property, it is important to realize and plan for the risk attendant to your business from wildfire.

All employers are required by law to have an Emergency Action Plan (“EAP”) and Fire Prevention Plan (“FPP’).

In California, the EAP must include (1) procedures for emergency evacuation, (2) procedures to follow for employees who remain to operate critical plant operations before they evacuate, (3) procedures to account for all employees after emergency
evacuation has been completed, (4) procedures to follow for employees performing rescue or medical duties, (5) the preferred means of reporting fires and other emergencies, and (6) names or regular job titles of persons or departments to contact for further information or explanation of duties under the plan.

Employers are required to establish an employee alarm system and ensure that a sufficient number of employees are trained to assist in a safe evacuation.

It is also important to know as an Employer whether you must pay for work missed by employees due to fires.

Even without a natural disaster, employers must compensate exempt employees for a full week’s salary for any week in which any work is performed without regard to the number of days or hours worked. Thus, if your business is closed due to fires in the middle of a workweek, you must pay exempt employees their full week’s salary. But if your business closes for an entire workweek and employees do not perform any work (including remote work) during the closure, there is no need to pay the
week’s salary—unless the employee uses available paid leave.

Employees may choose to use PTO, vacation time or sick time during the period the business is closed due to fire threats.

Generally, nonexempt employees must be paid for reporting to work. Under the Wage Orders, employees who report to work for a scheduled shift, but who are sent home with less than half of the scheduled day’s work, must be paid for half of that day’s work at their regular pay rate.

These reporting-pay obligations do not apply if business operations are disrupted by such circumstances as (1) threats to employees or property, (2) public utilities failure, or (3) Acts of God.

Some California cities have enacted predictive scheduling ordinances. While these ordinances generally include exceptions for circumstances beyond an employer’s control (e.g., an Act of God or a failure of public utilities), voluntarily closing up shop may trigger obligations under local ordinances.

Employees who must remain on an employer’s premises may be under an employer’s control and thus entitled to pay for the time on premises. The same holds true if an employee remains under the employer’s control, but, is not on the employer’s premises.

California law protects employees who serve as volunteer first responders. Other than certain healthcare workers, employees who serve as volunteer firefighters, emergency rescue personnel, or reserve peace officers do not need to provide advance notice to employers if they are taking off work to perform first-responder duties. An employer cannot discharge or discriminate against an employee for taking time off to perform volunteer emergency duties.

Employers with 50 or more employees must allow employees to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, to engage in fire, law enforcement, or emergency rescue training.

The California Family Rights Act and Family and Medical Leave Act afford protections to employees who have, or whose family members have, sustained serious injury or illness (including any injury or illness resulting from a natural disaster). Employees may also qualify for paid sick leave under California’s Healthy Workplace Healthy Families Act or the local paid sick leave ordinances.

California employers with 25 or more employees must provide up to 40 hours of unpaid time off for employees to cope with school-related issues, including if a school or childcare facility is closed due to a natural disaster.

In July 2019, Cal/OSHA enacted an emergency regulation, Protection from Wildfire Smoke, that applies to outdoor and semi-indoor employees when the Air Quality Index for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke. The regulation, effective January 28, 2020, provides, if employers cannot reduce workers’ harmful exposure to wildfire smoke so that the AQI for PM 2.5 is 150 or lower, they must provide respirators, such as N95 masks, to all employees for voluntary use and training on the regulation, the health effects of wildfire smoke, and the safe use and maintenance of respirators.

As Californians will attest, wildfires are extremely dangerous. Make sure you, your business and your employees stay safe and legally compliant. Contact your legal counsel to make sure you are able to weather the firestorms to come.

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.