As Los Angeles (the “Metropolis”) grapples with the impacts of the devastating wildfires, employers are going through crucial choices about defending their workforce whereas sustaining operations. Whereas Cal/OSHA just lately urged employers to guard staff from unhealthy air in Los Angeles County, this text will present additional perception on a wide range of the complicated authorized obligations California employers should navigate throughout wildfire and different pure catastrophe emergencies.
Wildfire Exception in Los Angeles Honest Work Week Ordinance
The Los Angeles Honest Work Week Ordinance usually imposes strict scheduling necessities on coated employers. Nevertheless, the Metropolis has clarified that wildfire-related closures fall below the ordinance’s pressure majeure exceptions. Particularly:
- The usual 14-day advance discover requirement for work schedules could also be suspended when operations are compromised by wildfires.
- Workers’ proper to say no schedule modifications made after the discover deadline could also be restricted throughout wildfire emergencies.
- The pressure majeure exception explicitly covers pure disasters, together with fires, floods, earthquakes, and different civil disturbances.
- Employers should nonetheless doc and justify any schedule modifications made below this exception.
Office Security Necessities Below Cal/OSHA
Below California Labor Code part 6400, employers should present and keep a protected and healthful office for workers. Cal/OSHA’s Safety from Wildfire Smoke normal mandates particular employer obligations when wildfire smoke impacts air high quality. These necessities embody:
- Monitoring the Air High quality Index (AQI) for PM2.5[1] earlier than and all through every work shift;
- Offering N-95 respirators for voluntary use when AQI for PM2.5 exceeds 150;
- Requiring necessary respirator use when AQI for PM2.5 exceeds 500;
- Implementing particular employee coaching packages about wildfire smoke hazards; and
- Monitoring air high quality by way of EPA’s AirNow web site or native air high quality administration district sources.[2]
Employee Rights in Evacuation Zones
California legislation explicitly prohibits employer retaliation towards staff who refuse to work in unsafe situations, together with inside evacuation zones. California Labor Code part 6311 protects staff who refuse to carry out work in violation of occupational security or well being requirements the place such violation creates an actual and obvious hazard. Moreover, part 1102.5 prohibits employer retaliation towards staff exercising such rights. Employers ought to be sure that they abide by evacuation orders when issued by applicable authorities. For extra data, the Division of Industrial Relations (“DIR”) has an infographic concerning Employee Security Wildfire Smoke and Evacuation Zones.
Wage and Hour Obligations Throughout Emergency Closures
Employers should additionally navigate complicated wage and hour necessities throughout pure disasters. California Labor Code Part 204 and the Honest Labor Requirements Act (FLSA) require employers to keep up common fee schedules even throughout emergencies. If a office is pressured to shut attributable to wildfire hazard or evacuation orders, exempt staff should usually obtain their full wage for any workweek by which they carry out any work. Non-exempt staff, nevertheless, usually solely should be paid for hours really labored, although reporting time pay necessities below Industrial Welfare Fee Wage Orders could apply if staff report back to work however are despatched dwelling attributable to wildfire-related closures.
Worker Lodging and Go away Rights
The California Honest Employment and Housing Act (FEHA) gives protections to staff who want lodging attributable to wildfire-related situations in particular circumstances. As an example, staff with respiratory situations could require further lodging when working in smoke-affected areas.
The California Household Rights Act (CFRA) and/or Household and Medical Go away Act (FMLA) entitles go away to staff with a critical well being situation brought on or exacerbated by a pure catastrophe, together with smoke from wildfires. California Labor Code Part 233 (also referred to as the “Kin Care” legislation) and varied native ordinances can also present staff with the correct to make use of accrued paid sick go away to take care of members of the family affected by wildfire evacuations or associated well being points.
WARN Act Concerns and Enterprise Planning
Pure disasters like wildfires could set off obligations below Labor Code Sections 1400-1408. This legislation, often known as the WARN Act, usually requiring a 60 days’ discover earlier than a mass layoff or closure. Whereas Courts and the California Labor Commissioner have usually interpreted the Act’s “bodily calamity” exception to incorporate pure disasters like wildfires, employers ought to observe that this exception is narrowly interpreted and excludes foreseeable enterprise circumstances and financial downturns even when attributable to catastrophe. At the beginning of the COVID-19 pandemic, the DIR issued Steerage offering perception on the “bodily calamity” exception.
Given these points, employers ought to overview their employment and insurance coverage insurance policies, in addition to their catastrophe preparedness plans, to make sure compliance with all relevant rules and to attenuate potential legal responsibility throughout these difficult circumstances. Sheppard Mullin understands the annoying influence the wildfires have had on the Los Angeles group and past, please don’t hesitate to contact us for assist.
[1] PM2.5, or particulate matter 2.5, is a time period for tiny particles within the air which can be 2.5 micrometers or much less in diameter.
[2] Air high quality could be tracked by way of web sites just like the U.S. EPA’s AirNow or native air high quality administration district web sites. Employers can even use their very own devices to measure PM2.5 at worksites per Cal/OSHA’s necessities.