United States: When Disaster Strikes: How Employers Should Respond To Wildfires

Seyfarth Synopsis: When faced with wildfires or natural disasters, California employers must keep calm, carry on, and continue to meet their obligations under California law.

Be Prepared.

All employers, not just those in California, must have an Emergency Action Plan ("EAP") and Fire Prevention Plan ("FPP').

California regulations state that an EAP should 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 must also establish an employee alarm system and ensure that a sufficient number of employees are trained to assist in a safe evacuation in the event a disaster strikes.

To the extent employers offer safety kits and rations for emergency situations, employers should regularly inspect and update them.

Do Employers Have To Pay For Work Missed Due To Fires?

Exempt Employees. 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.

For example, if a business closes in the middle of a workweek, it must pay exempt employees their full week's salary. But if the 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.

Vacation, PTO, and Sick Time. Employees may choose to use PTO, vacation time or sick time, if applicable. If employers decide to provide any additional paid leave in light of a natural disaster, then the parameters of the leave available should be clearly communicated to all employees and applied consistently.

Remote Work. If employees weather the firestorm from home, employers must be mindful of the potential pitfalls of remote work. As we have noted, there are particular concerns regarding issues ranging from accurately recording time to reimbursing expenses.

Reporting Time Pay. 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. Note, though, that there is no reporting-pay exceptions for a rattled employer that shuts down the business on its own accord.

Predictive Scheduling. As we have previously reported, some California cities (including several in Northern California) 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.

On Call Requirements. 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.

Split Shifts. Employers must also consider whether they have employees working split shifts during interrupted business operations and must ensure the appropriate wages are paid.

Are Employers Required To Provide Leave?

Volunteer Firefighter and Emergency Rescue Personnel Leave. 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.

CFRA/FMLA/Paid Sick Leave/Local Sick Pay. The California Family Rights Act and Family and Medical Leave Act afford protections to employees who have—or whose family members have—suffered 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 myriad of local paid sick leave ordinances.

School-Related Activities. 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 an school or child care facility is closed due to a natural disaster.

California Employers Have New Special Duties To Cope With Poor Air Quality.

In July 2019, Cal/OSHA enacted an emergency regulation, Protection from Wildfire Smoke.  This regulation 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. Read more about these requirements here.

Avoid The Heat.

California employers must ensure their emergency response policies and practices are legally compliant.

Edited by Elizabeth Levy

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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