When “Disaster” Strikes, Don’t Expect Employees to Come In

Every good business owner works hard to ensure that their employees are doing their jobs under safe conditions. But what about when an emergency situation arises? Is there a way to plan for that? California legislation recently passed Senate Bill 1044 which introduced new employee protections related to emergency conditions. As an employer, it’s important to understand the key elements of SB1044 to stay compliant and appropriately manage employee expectations during dangerous unexpected events.

Breaking Down SB1044

SB1044 was designed to protect employees by preventing employers from “retaliating” against them for refusing to work in conditions they reasonably believe to be unsafe during emergencies. As an example, if there is a forest fire near your establishment and employees refuse to come to work, employers may not take punitive action against them. They cannot be terminated, demoted, or written up for exercising their rights under this law.

So what is defined as “emergency conditions” under SB1044?

– Conditions of disaster or extreme peril to the safety of persons or property at the workplace or work site caused by natural forces or a criminal act.

– An order to evacuate a workplace, work site, worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act.

In this definition, there’s a lot of wiggle room for interpretation. If a shooting occurs a few blocks away, is that considered “extreme peril?” If an employee works from home and they must evacuate due to a wildfire, how long can they reasonably expect to be exempt from their daily tasks? This ambiguity leaves employers guessing on the right course of action.

Basics of Compliance

There are a few things that employers can do to cover their legal obligations even if they’re not completely certain of the emergency conditions. Generally speaking, unsafe conditions will involve a natural disaster, dangerous circumstances like a riot or attack, or other situations that pose a significant risk to employee safety. As of this writing, this does not include a health pandemic. Since your employees may be be unclear on what is considered unsafe, it’s a good idea to revisit and update your employee policies and clearly communicate them with your team.

Update or establish a clear non-retaliation policy that explicitly states that employees will not face adverse employment actions for refusing to work under unsafe conditions in an emergency situation as defined by SB1044. Under this law, employees are responsible for communicating their refusal to work to their employer, so it may be a good idea to host a training session to discuss their rights and obligations. It should also be noted that employers may not prohibit an employee from accessing their own means of communication, such as their cell phone, in the event of an emergency for the purposes of seeking assistance, assessing the safety of the situation, or communicating with those concerned about their well-being.

Document Everything

As with all employee interactions, everything should be documented. Maintain thorough records of any employee requests or refusals to work during emergency situations. Document your response and any actions taken to address safety concerns. All employee concerns should be addressed promptly to avoid misunderstandings or potential safety risks.

It’s important for employers to understand how this legislation could impact their daily operations. By their nature, emergency situations develop unexpectedly, and not every individual will be mentally or emotionally equipped to handle the situation appropriately, making advance preparation all the more important. Working with an experienced attorney can help you establish effective policies that will protect your business from potential liability and remain in compliance. If you have questions about SB1044 or need guidance regarding other potential employment issues, call our office at (925) 399-1529 (1LAW).

Integrated General Counsel
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