Wildfires continue to sweep through Southern California, leaving thousands of people displaced as well as burning businesses to the ground. Beyond the personal and community impacts, wildfires present unique challenges for employers who must navigate workplace safety, legal compliance, and operational disruptions. Employers should keep the following in mind during this crisis.
Workplace Safety and Health
The California Division of Occupational Safety and Health (Cal/OSHA) mandates that employers protect employees from workplace hazards, including those arising during natural disasters. This includes protecting employees from wildfire smoke exposure whenever the Air Quality Index (AQI) for PM2.5 exceeds 151.
While the AQI has vastly improved as of the time of this post, high wind alerts and varying conditions make it imperative for employers to stay vigilant and well-informed. This includes ensuring that the AQI of any worksite affected by wildfire is regularly monitored prior to and throughout each work shift.
Employers must provide respirators to all employees (and encourage their use) for all worksites experiencing an AQI of 151-500-- as many areas of Los Angeles experienced in the last week.
More information regarding wildfire smoke standards can be found on Cal/OSHA’s website.
Employers should also stay informed regarding local evacuation orders and clearly communicate to employees how such orders impact reporting to work and the business. For those near evacuation sites, providing necessary personal protective equipment, implementing flexible schedules, identifying evacuation routes, and considering telecommuting arrangements may all become important things to consider.
Wage and Hour Compliance
Nonexempt Employees
Employers must continue to track and compensate nonexempt employees for all hours worked, even during disruptions. This includes ensuring that employees are paid for additional hours worked while navigating operational changes. However, there are some requirements that may be impacted by the wildfires:
- Timekeeping Record Unavailability: If an employer’s timekeeping records were lost or are now unusable, the employee’s hours worked must be re-established so that the employees receive timely compensation. Employers should work with employees to confirm their hours during the affected period, and, ideally, obtain related written confirmation.
- Reporting Time Pay: California law generally requires employers to compensate employees who report to work but are sent home early. However, this obligation does not apply in cases where work interruptions result from “Acts of God” or other uncontrollable events, such as wildfires.
- Split-Shift Premiums: Flexibility is essential given varying conditions when experiencing an ongoing natural disaster. This means that some employers may find the need to send employees home early, asking them to return early in the day. In those situations, employers may owe employees a split shift premium (one hour of pay at the state minimum wage.)
- Employees On-Call: If an employee is on-call (and under the employer’s control) during the wildfires, they must be compensated for that time.
- Business Closure: If a business remains closed for a period of time, nonexempt employees do not need to be paid for their remaining scheduled shifts unless they perform work.
Exempt Employees
Exempt employees are entitled to their full salary for any week in which they perform work, even if workplace disruptions occur. However, employers are not required to pay exempt employees for full-week closures during which the employee performs no work.
Telecommuting Arrangements
Employers may be asked to consider remote work arrangements while the wildfires are still in play. Some of those requests may fall under a request for reasonable accommodation (as further discussed below).
Employers considering telecommuting arrangements may want to refer to this article.
Leaves of Absence And Accommodation Issues
Leave Entitlement
Employees affected by the wildfires may qualify for leave under the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA). Covered reasons include serious health conditions caused by wildfire smoke or injuries, and the need to care for impacted family members.
Employees involved in disaster relief may also have specific work protections under California law. Employers should be familiar with applicable state and local provisions to ensure compliance while supporting employees in need.
Accommodation Requests
Conditions created by the wildfires may create the need for an accommodation under the Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA). The wildfires may impact employees’ physical or mental health, leading to workplace restrictions. Employers should engage in the same interactive process as any other time an employee requests a reasonable accommodation for a medical condition.
Sick Leave and Paid Time Off
Employees in California may use accrued sick leave for absences related to the wildfire disaster, provided the reason aligns with a permissible use under the law, such as addressing health concerns or caring for a family member. Additionally, employees may opt to use paid leave under the company’s vacation or paid time off (PTO) policy, if the policy permits or if the employer allows it. It is essential to keep employees informed about their leave entitlements and any workplace changes resulting from the disaster to ensure compliance and support during this challenging time.
Reduction In Force Issues
Employers forced to reduce staff or temporarily shut down due to wildfires should assess obligations under the California Worker Adjustment and Retraining Notification (Cal-WARN) Act. While Cal-WARN generally requires 60 days’ notice of mass layoffs or closures, the law exempts employers in cases of “physical calamity.” Employers must still communicate transparently with employees and document efforts to comply with legal requirements.
Opportunities
Employers have the opportunity to work with employees and neighborhoods in crisis to start volunteer projects, join volunteer efforts and help care for employees who have lost everything in the wildfires. Participation in such efforts in the weeks/months to come will help communities return to a more normal status, generate goodwill and morale and teamwork among a workforce.
Looking Ahead
As the wildfires continue to threaten Southern California and the situation continues to develop, employers will continue to face many unprecedented challenges.
Because some elements of the initial blog were unintentionally inartful and insensitive, we promptly changed those elements to reflect the intended message to guide California employers to support their employees through this difficult period.
