Understanding your employer’s obligations during California’s wildfire disasters
While Cal/OSHA recently urged employers to protect workers from unhealthy air in Los Angeles County, this article will provide further insight on a variety of complex legal obligations California employers must navigate during wildfire and other natural disaster emergencies. While Cal/OSHA recently urged employers to protect workers from unhealthy air in Los Angeles County, this article will provide further insight on a variety of the complex legal obligations California employers must navigate during wildfire and other natural disaster emergencies.
Wildfire Exception in Los Angeles Fair Work Week Ordinance
The Los Angeles Fair Work Week Ordinance typically imposes strict scheduling requirements on covered employers. The City clarified that wildfires are covered by the ordinance’s force-majeure exceptions. Specifically:
The standard 14-day advance notice requirement for work schedules may be suspended when operations are compromised by wildfires.
- Employees’ right to decline schedule changes made after the notice deadline may be limited during wildfire emergencies.
- The force majeure exception explicitly covers natural disasters, including fires, floods, earthquakes, and other civil disturbances.
- Employers must still document and justify any schedule changes made under this exception.
- Workplace Safety Requirements Under Cal/OSHA
Under California Labor Code section 6400, employers must provide and maintain a safe and healthful workplace for employees. Cal/OSHA’s Protection from Wildfire Smoke Standard mandates specific obligations for employers when wildfire smoke impacts air quality. These requirements include:
Monitoring the Air Quality Index (AQI) for PM2.5
- before and throughout each work shift;[1]Providing N-95 respirators for voluntary use when AQI for PM2.5 exceeds 150;
- Requiring mandatory respirator use when AQI for PM2.5 exceeds 500;
- Implementing specific worker training programs about wildfire smoke hazards; and
- Tracking air quality through EPA’s AirNow website or local air quality management district resources.
- Worker Rights in Evacuation Zones[2]
California law explicitly prohibits employer retaliation against workers who refuse to work in unsafe conditions, including within evacuation zones. California Labor Code section 631 protects workers who refuse work that violates occupational safety and health standards when such violations create a real or apparent hazard. Section 1102.5 also prohibits retaliation by employers against workers who exercise their rights. Employers must ensure that they comply with evacuation orders issued by the appropriate authorities. For more information, the Department of Industrial Relations (“DIR”) has an infographic regarding Worker Safety Wildfire Smoke and Evacuation Zones.
Wage and Hour Obligations During Emergency Closures
Employers must also navigate complex wage and hour requirements during natural disasters. California Labor Code Section 204, and the Fair Labor Standards Act require employers to maintain regular payments schedules during emergencies. Non-exempt employees, however, are only required to be paid for the hours actually worked. Non-exempt employees, however, generally only need to be paid for hours actually worked, though reporting time pay requirements under Industrial Welfare Commission Wage Orders may apply if employees report to work but are sent home due to wildfire-related closures.
Employee Accommodations and Leave Rights
The California Fair Employment and Housing Act (FEHA) provides protections to employees who need accommodations due to wildfire-related conditions in specific circumstances. Employees with respiratory conditions, for example, may need additional accommodations while working in smoke-affected zones.
The California Family Rights Act and/or Family and Medical Leave Act provide leave to employees who have a serious illness caused or exacerbated as a result of a natural disaster. This includes smoke from wildfires. California Labor Code Section 233 (also known as the “Kin Care” law) and various local ordinances may also provide employees with the right to use accrued paid sick leave to care for family members affected by wildfire evacuations or related health issues.
WARN Act Considerations and Business Planning
Natural disasters like wildfires may trigger obligations under Labor Code Sections 1400-1408. This law, also known as the WARN Act requires a 60-day notice before mass layoffs or closures. Although the California Labor Commissioner and courts have interpreted the Act’s “physical calamity” exception to include natural catastrophes like wildfires in general, employers should be aware that this exception has been narrowly interpreted. It excludes foreseeable economic downturns and business circumstances even if they are caused by disaster. The DIR released guidance at the beginning of the COVID-19 Pandemic to provide insight on the “physical catastrophe” exception.
Given the issues, employers are encouraged to review their insurance and employment policies, along with their disaster preparedness plans to ensure compliance with applicable regulations and minimize potential liability in these challenging circumstances. Sheppard Mulin understands how stressful the wildfires are for the Los Angeles community. Please do not hesitate to reach out to us for assistance. Employers can also use their own instruments to measure PM2.5 at worksites per Cal/OSHA’s requirements.
