The California wildfires over the last couple of years have forced thousands to evacuate, destroyed buildings and brought tragedy and loss to many. At the same time, it’s important for employers to understand their obligations during an emergency, including when it comes to employee pay, leaves of absences and planning ahead to avert disaster.
Paying Exempt & Nonexempt Employees
Employers should know state employment laws with regard to payment of exempt and nonexempt employees related to office closures during an emergency. In California, employers must pay exempt employees a full weekly salary for any week in which any work is performed. If the business is closed for the whole week, however, employers don’t need to pay exempt employees.
In emergencies, special pay rules apply for nonexempt employees. If the business shuts down for any of the following reasons, nonexempt employees must be paid for the hours they worked prior to being sent home:
- Operations can’t start or continue due to threats to the employer or property or when recommended by civil authority;
- Public utilities such as water, gas, electricity or sewer fail; or
- Work is interrupted by an “Act of God” or other causes not within the employer’s control.
However, if the business is shut down at the employer’s discretion (and not for one of the above reasons), according to California law, for example, reporting time may be owed. When a nonexempt employee shows up for work as scheduled and is not put to work or is given less than half of his/her scheduled hours, the employee would be eligible for reporting time pay; that is, payment for one half of the scheduled shift, no less than two hours and no more than four hours.
Employers are also always free to pay employees or let them use vacation or other personal time.
Leaves of Absence for Emergency Personnel
Many states, including California, protect employees who serve as volunteer emergency responders and are called into action during natural disasters. In this case, employers may not discharge or otherwise discriminate against employees who take a temporary leave of absence to respond to an emergency in their roles as volunteer firefighters, emergency rescue personnel, or reserve peace officers. This leave may be unpaid.
The law does not require advance notice, except for certain health care workers. Employees who are health care providers must inform their employers both when they become designated as emergency rescue personnel and when they are notified of their duty in an emergency.
Leave for Health Issues
Employees may be entitled to time off to deal with health issues that occur as a result of the disaster. For instance, employees may use their California mandatory paid sick leave for the care or treatment of a health condition for themselves or a family member, as defined by the law.
They also may be eligible for time off for family or medical leave for themselves or to care for family members with any serious health conditions under the federal Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA). The FMLA and the CFRA cover employers with 50 or more employees and provide a maximum of 12 weeks of unpaid leave in a 12-month period.
Employers may have obligations to reasonably accommodate an employee under the federal Americans with Disabilities Act (ADA) and the state Fair Employment and Housing Act (FEHA). Should an employee suffer a physical or mental injury because of a natural disaster, they may be entitled to protections under these laws.
School or Childcare Leave
Under the state’s school activities leave law, California employees with 25 or more employees at the same location may also see requests for time off from workers with minor children. The Labor Code provides parents with up to 40 hours of unpaid leave time per calendar year for various school-related issues, including if a school or licensed childcare facility closes due to a natural disaster, including earthquake or fire.
Keep Workers Safe
Wildfires pose health hazards. Smoke can contain chemicals and fine particles that harm health. Additionally, other hazards are rampant, such as electrical hazards, unstable structures, flammable gasses, and ash, soot and dust. Employers are obligated to create and maintain a safe workplace for their employees. Cal/OSHA has provided guidance on how to keep workers safe in heavy smoke conditions and during fire cleanup.
Employers should have an Emergency Action Plan (EAP) in place, and communicate that plan to employees. In fact, all California employers are required to have an EAP designating the actions that must be taken to protect employees from fire and other emergencies. California employers must also have a Fire Prevention Plan (FPP) that details the fire hazards employees may face and how to handle a fire should the situation arise.
In considering emergency situations, employers should plan how they will handle and communicate office closings and determine who will make the final decision on whether to close. Determine also if alternative workplaces are available, whether certain employees can work from home or whether to shut down all work during the emergency.
RPS specializes in providing commercial insurance solutions to a wide range of businesses. For more information about our insurance products, give us a call.
Sources: Littler, HR WatchDog