As Los Angeles (the “City”) grapples with the impacts of the devastating wildfires, employers are facing critical decisions about protecting their workforce while maintaining operations. While Cal/OSHA recently urged employers to protect workers from unhealthy air in Los Angeles County, this article will provide further insight on a variety of the complex legal obligations California employers must navigate during wildfire and other natural disaster emergencies.
Wildfire Exception in Los Angeles Fair Work Week Ordinance
The Los Angeles Fair Work Week Ordinance typically imposes strict scheduling requirements on covered employers. However, the City has clarified that wildfire-related closures fall under the ordinance’s force majeure exceptions. Specifically:
- The standard 14-day advance notice requirement for work schedules may be suspended when operations are compromised by wildfires.
- Employees’ right to decline schedule changes made after the notice deadline may be limited during wildfire emergencies.
- The force majeure exception explicitly covers natural disasters, including fires, floods, earthquakes, and other civil disturbances.
- Employers must still document and justify any schedule changes made under this exception.
Workplace Safety Requirements Under Cal/OSHA
Under California Labor Code section 6400, employers must provide and maintain a safe and healthful workplace for employees. Cal/OSHA’s Protection from Wildfire Smoke standard mandates specific employer obligations when wildfire smoke affects air quality. These requirements include:
- Monitoring the Air Quality Index (AQI) for PM2.5[1] before and throughout each work shift;
- Providing N-95 respirators for voluntary use when AQI for PM2.5 exceeds 150;
- Requiring mandatory respirator use when AQI for PM2.5 exceeds 500;
- Implementing specific worker training programs about wildfire smoke hazards; and
- Tracking air quality through EPA's AirNow website or local air quality management district resources.[2]
Worker Rights in Evacuation Zones
California law explicitly prohibits employer retaliation against workers who refuse to work in unsafe conditions, including within evacuation zones. California Labor Code section 6311 protects workers who refuse to perform work in violation of occupational safety or health standards where such violation creates a real and apparent hazard. Additionally, section 1102.5 prohibits employer retaliation against workers exercising such rights. Employers should ensure that they abide by evacuation orders when issued by appropriate authorities. For more information, the Department of Industrial Relations (“DIR”) has an infographic regarding Worker Safety Wildfire Smoke and Evacuation Zones.
Wage and Hour Obligations During Emergency Closures
Employers must also navigate complex wage and hour requirements during natural disasters. California Labor Code Section 204 and the Fair Labor Standards Act (FLSA) require employers to maintain regular payment schedules even during emergencies. If a workplace is forced to close due to wildfire danger or evacuation orders, exempt employees must generally receive their full salary for any workweek in which they perform any work. Non-exempt employees, however, generally only need to be paid for hours actually worked, though reporting time pay requirements under Industrial Welfare Commission Wage Orders may apply if employees report to work but are sent home due to wildfire-related closures.
Employee Accommodations and Leave Rights
The California Fair Employment and Housing Act (FEHA) provides protections to employees who need accommodations due to wildfire-related conditions in specific circumstances. For instance, employees with respiratory conditions may require additional accommodations when working in smoke-affected areas.
The California Family Rights Act (CFRA) and/or Family and Medical Leave Act (FMLA) entitles leave to employees with a serious health condition caused or exacerbated by a natural disaster, including smoke from wildfires. California Labor Code Section 233 (also known as the “Kin Care” law) and various local ordinances may also provide employees with the right to use accrued paid sick leave to care for family members affected by wildfire evacuations or related health issues.
WARN Act Considerations and Business Planning
Natural disasters like wildfires may trigger obligations under Labor Code Sections 1400-1408. This law, known as the WARN Act, typically requiring a 60 days’ notice before a mass layoff or closure. While Courts and the California Labor Commissioner have generally interpreted the Act’s “physical calamity” exception to include natural disasters like wildfires, employers should note that this exception is narrowly interpreted and excludes foreseeable business circumstances and economic downturns even if caused by disaster. At the start of the COVID-19 pandemic, the DIR issued Guidance providing insight on the “physical calamity” exception.
Given these issues, employers should review their employment and insurance policies, as well as their disaster preparedness plans, to ensure compliance with all applicable regulations and to minimize potential liability during these challenging circumstances. Sheppard Mullin understands the stressful impact the wildfires have had on the Los Angeles community and beyond, please do not hesitate to contact us for help.
[1] PM2.5, or particulate matter 2.5, is a term for tiny particles in the air that are 2.5 micrometers or less in diameter.
[2] 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.