Navigating Wildfire Regulations: A Guide for Employers

10 Jan

What happened?

Due to the fires throughout Southern California, Vensure would like to provide its clients with a guide to help them comply with California employment laws and access resources to assist affected employees. Our hearts go out to all of our clients and employees affected by these wildfires, and we hope this will be helpful during these difficult times.

What are the details?

Cal/OSHA is taking measures to ensure the health and safety of workers exposed to unhealthy air due to wildfire smoke. By enforcing these regulations, the agency aims to minimize health risks and ensure that employers provide necessary protections, such as monitoring air quality and providing N-95 respirators. Additionally, employers must comply with specific pay and time-off regulations during wildfire disruptions to safeguard workers’ rights and well-being.

Wildfire Regulations for Employers

Cal/OSHA is reminding employers to protect workers from unhealthy air due to wildfire smoke. Several fires are currently impacting air quality throughout Los Angeles County. Refer to the California Department of Forestry and Fire Protection (Cal Fire) for the latest status on the fire, road closures and evacuation orders. The California Division of Occupation Safety and Health (Cal/OSHA) monitors and enforces rules related to unhealthy air as a result of wildfire smoke through its Protection from Wildfire Smoke regulation.

Employers whose workplace may be affected by air quality issues related to wildfire smoke are required to comply with the regulation unless one or more of the following apply:

The worksite is a completely enclosed building or vehicle with mechanical ventilation, windows and doors that remain closed except when necessary to enter and exit the building or vehicle; or
The employee’s exposure is limited to one cumulative hour or shorter during their shift; or
The employee is a firefighter engaged in wildland firefighting.

Employers need to be aware that this regulation has a wide scope, covering both indoor and outdoor workers. It applies to outdoor workers who spend more than one cumulative hour outside during their shift, as well as indoor locations like retail establishments where doors or windows are frequently open.

To protect workers, employers must provide N-95 respirators for voluntary use. Cal/OSHA’s standard also outlines specific training requirements. Full details, including resources in both English and Spanish, can be found at www.WildfireSmokeCalifornia.org and www.HumodeIncendios.org.

Monitoring Air Quality:

When wildfire smoke might affect a worksite, employers must monitor the Air Quality Index (AQI) for PM2.5 before and throughout the work shift. Where the AQI for PM2.5 is above 150, the employer must provide respirators to all workers and encourage workers to use respirators. Where the AQI for PM2.5 exceeds 500, respirator use is required. Employers must provide NIOSH-approved respirators such as particulate filtering respirators labeled N95, N99, N100, R95, P95, P99, or P100.

Air quality can be tracked through websites like the U.S. EPA’s AirNow or local air quality management district websites. Employers can also use their own instruments to measure PM2.5 at worksites per Cal/OSHA’s requirements.

Evacuation Zones

In California, it is illegal for employers to retaliate against workers for refusing to work in unsafe conditions, including in evacuation zones. Read more in the fact sheet Worker Safety Wildfire Smoke and Evacuation Zones. Employers should check local evacuation orders before reopening worksites and communicate clearly with employees about when it is safe to return.

Cal/OSHA maintains a resource page with more information for complying with the Wildfire Smoke Regulations.

Paying Employees

Due to smoke or orders from civil authorities to evacuate or restrict access, businesses might need to close or change their operating hours. This can affect how both nonexempt and exempt workers are paid.

Nonexempt workers are paid for all hours actually worked; however, a special reporting time pay rule requires employers to pay additional wages at the employee’s regular rate of pay. This often occurs when an employer sends a nonexempt employee home early because there is either no work or less work than needed. California employers must generally pay a non-exempt employee reporting time pay when the employee reports for their regular shift and works less than half of their scheduled shift. In this case, they must be paid at least half of their scheduled hours—never less than two hours, nor is it required to pay more than four hours.

Additional exceptions to reporting time pay requirements occur when:

Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities (e.g., bomb threat).
Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system (e.g., power goes out during a storm); or
The interruption of work is caused by an Act of God or other cause not within the employer’s control (e.g., an earthquake, wildfire, etc.).

Suppose wildfires force an employer to send a nonexempt employee home before they complete half their shift. In that case, the employer is not obligated to pay reporting time pay, as long as the reason is due to uncontrollable events like wildfires or floods or if recommended by civil authorities. In such cases, employers will only need to pay for the actual hours worked by the nonexempt employees.

If a business remains closed for some time, nonexempt employees do not need to be paid for their remaining scheduled shifts unless they perform work.

Exempt employees, however, must always be paid their standard salary for the week whenever they perform work. So, if an exempt employee works the first day of the workweek and the wildfires prevent any other work for the week, the exempt employee must be paid their entire salary for the week.

If wildfires disrupt operations to the extent that an exempt employee performs no work at all during the workweek, then the employer may choose not to pay the employee’s salary for that week.

Employees who lose income due to wildfires can immediately file for unemployment insurance benefits with the California Employment Development Department as the one-week waiting period for such claims is waived for areas affected by the Governor’s Emergency Proclamation.

Time Off

Effective January 1, 2025, California’s mandatory paid sick leave law, known as the Health Workplaces, Healthy Families Act, allows agricultural employees who work outdoors to use paid time off to avoid smoke, heat, or flooding conditions caused by local or state emergencies, including when their worksites are closed due to these conditions.

However, during wildfires, employees may also use their paid sick leave for other health-related reasons, as the law allows employees to use the time to diagnose, care, or treat an existing health condition or for preventative care for the employee or a qualifying family member. In other words, if wildfire conditions are creating or exacerbating medical conditions the employee must respond to, they may use their paid sick leave under the law. Employers must keep in mind that local laws may provide for different amounts of paid sick leave, such as in L.A. City, West Hollywood, and Santa Monica.

Vacation time will depend on the employer’s policy, and employers should apply this policy consistently for all employees.

Employees seeking time off work may qualify for protection under the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA) if they have a serious health condition or need to care for a family member with such a condition, as long as they meet the eligibility criteria. If these laws do not apply, your internal policies might still offer protection. Additionally, you can always choose to grant leave voluntarily, even without a legal requirement, but employers should consider that they would be setting a precedent for future similar leave requests.

Natural disasters, such as wildfires, may lead to flare-ups in many different medical conditions and create the need for an accommodation under the Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA). For example, wildfire conditions could impact employees with respiratory conditions, mobility limitations, or mental health conditions. Employers should engage in the interactive dialogue process, as required by law, in the same manner as when handling requests for reasonable accommodation on the job, including a leave of absence. Additionally, note any additional leave laws for employees who are volunteer firefighters or assist with disaster relief.

Employers may also consider an alternative, such as allowing employees to work remotely. Beyond what is available by law, more generous benefits and greater flexibility can be provided to employees, but employers must keep in mind that these must be applied fairly and consistently across the board for all affected employees.

Employers may have further legal responsibilities concerning compensation based on the terms of an employment contract, a collective bargaining agreement, or an enforceable policy or practice.

If an employer experiences power outages on days when employees are working, they can track all hours worked using handwritten timesheets or other methods. For accuracy, each employee should log their own hours, noting their workday’s exact start and end times, including lunch and other breaks. Employers using a professional employer organization (PEO) can contact their HR or Payroll representative for help with recording time worked.

New Hire Notification

California amended its Labor Code section 2810.5 wage theft notice that employers provide to nonexempt new hires to include information related to relevant emergency proclamations. Employers in Los Angeles and Ventura counties, who hire any nonexempt workers who start within thirty days after January 7, 2025, will need to be notified on this form of the existence of the wildfire Governor’s Emergency Proclamation if the emergency may affect their health and safety during their employment.

Refusal to Report to Work/Leaving the Premises

During emergency conditions, an employer cannot punish an employee who leaves work or refuses to report to work if they have a reasonable belief that work is unsafe. Existing law, SB 1044, defines an emergency as a disaster or extreme peril to the safety of people or property at the workplace caused by natural forces or a criminal act (such as an active shooter).

The law requires employees to give advanced notice when feasible before failing to report to or leave work, letting employees use their judgment based on the foreseeability of the emergency. For workplaces that do not allow cell phones, the law prohibits employers from enforcing personal cell phone policies if the device is used during an emergency for safety reasons. The law does not apply to specific groups, such as first responders and certain healthcare workers.

Residents with questions about wildfire smoke hazards and protections can call 833-579-0927 to speak with a Cal/OSHA representative.

Assistance to Employees Who Are Victims of Disaster

In addition to pointing employers to available resources such as those accessed via the resource links below, employers can implement leave sharing programs to allow employees to donate their accrued, unused paid time off or create a leave pool that can be accessed by affected victims. However, employers must carefully construct such programs to ensure the donated leave hours by an employee are not taxed. Employers should consult a tax professional, employment attorney, or HR professional to ensure compliance. Disaster relief assistance is also allowed by Section 139 of the IRS code, permitting employers to “reimburse or pay reasonable and necessary personal, family, living, or funeral expenses incurred as a result of a qualified disaster,” provided that such expenses are not covered by insurance or otherwise.”

Source References

California Department of Industrial Relations

Resources

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.