The 12 Days of California Labor & Employment – Day 6 -"Do Not Retaliate in Emergency Conditions"

In the spirit of the season, we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On this sixth day of the holidays, my labor and employment attorney gave to me: six geese-a-laying and SB 1044.

California, unfortunately, seems to see more than its fair share of emergency conditions. There are fires, earthquakes, mudslides, and active shooter situations, to name the most prevalent. Seemingly SB 1044 was enacted in response to these types of problems. As of January 1, 2023, SB 1044 prohibits an employer, in the event of an emergency condition, as defined, from taking or threatening adverse action against any employee for refusing to report to or leaving a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe, except as specified. SB 1044 will not apply once the emergency condition has ceased. In addition, SB 1044 also prevents any employer from accessing the employee's mobile device or other communications device used for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to verify their safety. This part of the law applies to private and public sector employees but does not apply to employees of a depository institution or a correctional facility or to agricultural equipment operators.

The bill includes numerous terms that could be deemed vague or ambiguous. Certain definitions are provided to alleviate employer confusion. First, what defines an emergency condition? Per the law, an emergency condition means the existence of either of the following (1) conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or (2) an order to evacuate a workplace, a worksite, a worker's home, or the school of a worker's child due to natural disaster or a criminal act. What is important to note is that it specifically does not include a health pandemic. Thus, COVID-19 is not considered an emergency condition that employees can use under the new law.

The phrase "reasonable belief" is likely to be the most problematic term as each employee can argue their own belief. However, per SB 1044, a "reasonable belief that the workplace or worksite is unsafe" means that a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises. The existence of any health and safety regulations specific to the emergency condition and an employer's compliance or noncompliance with those regulations shall be a relevant factor if this information is known to the employee at the time of the emergency condition or the employee received training on the health and safety regulations mandated by law specific to the emergency condition.

In the event of an emergency condition, SB 1044 notes an employer cannot: 1) take or threaten adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe; or 2) prevent any employee from accessing the employee's mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to verify their safety.

Employers should ensure their emergency safety plans are in order and that appropriate supervisors or management are aware of this new law and procedure so that absences can be tracked appropriately to avoid issues. Failure to address the absence correctly could lead to a PAGA claim. But, SB 1044 allows an employer to cure any alleged violation before a PAGA lawsuit may be filed.

There are exceptions to who can refuse to report or leave a worksite due to an emergency condition. This includes first responders, disaster service workers, an employee required by law to render aid, certain health care workers, certain employees who provide emergency services, military base workers, essential workers at a nuclear plant, employees of a company providing utility, communications, energy, or roadside assistance during emergencies, licensed residential care employees, an employee of a depository, transportation employees participating directly in emergency evacuations, and other employees whose job involves assisting with emergency conditions.

An employee under SB 1044 must provide notice to the employer prior to leaving or not reporting to work when feasible. If that is not possible, an employee must notify the employer as soon as possible.