Wildfires continue to rage across the Los Angeles area, causing death, massive destruction of property, and forcing tens of thousands to flee their homes. President Biden has approved a “Major Disaster Declaration” for California because of the wildfires. This disaster also impacts employers’ obligations under California law, including California’s workplace safety and health statute, California wage and hour law, Cal-WARN, and the Los Angeles Fair Work Week ordinance.
Quick Hits
- Wildfires sweeping through the Los Angeles area have prompted evacuation orders affecting tens of thousands of residents and creating dangerous conditions for travel.
- Employers affected by the disaster may need to consider their emergency preparedness plans, immediate workplace safety risks, and employment and staffing concerns while maintaining critical business functions.
Wildfires, pushed by high winds and drought conditions, have swept through areas around Los Angeles, destroying homes and businesses. As firefighters work to control the blazes, tens of thousands of residents are under evacuation orders and schools are closed. Thousands across Southern California have lost power, and many more are at risk of experiencing preemptive power outages taken as a precaution to prevent additional fires.
The wildfires—as with similar natural disasters, such as hurricanes, earthquakes, and floods—have created further challenges for employers, forcing them to adapt their operations and put their emergency preparedness plans to the test. For others, the disaster is a devastating reminder of the importance of preparedness—and its limits—as natural disasters can arise quickly and without warning.
Here are some key considerations for employers impacted by these latest wildfires.
Emergency Preparedness
- Emergency plans and communication protocols. Employers with employees or workplaces impacted by the wildfires may want to consider their emergency response plans and communication protocols and consult emergency contact lists. Communication with employees is critical to maintaining employee safety, keeping track of employees amid evacuations, and informing employees of potential hazards affecting the workplace or impacting transportation.
- Business disruptions. Affected employers may want to determine which business functions are critical and implement plans to maintain these operations during the wildfires.
- Flexible work arrangements. With evacuation orders and travel advisories, many employers may have to close physical workplaces and/or employees will need to find other work arrangements. Employers may want to consider temporary remote work arrangements, adjust schedules to accommodate for transportation or safety issues, or temporarily suspend operations if necessary to ensure safety.
Workplace Safety and Health
- Workplace safety obligations. During a natural disaster, employers’ workplace safety obligations in some ways become even more complicated and challenging. The California Division of Occupational Safety and Health (Cal/OSHA) requires employers to ensure employees are not exposed to unaddressed hazards, even if employers are displaced from their normal operating environment during a natural disaster.
- Wildfire smoke. Smoke from wildfires creates health risks that can impact employers. Cal/OSHA has a specific wildfire smoke standard that applies to most outdoor workplaces in which the Air Quality Index (AQI) for airborne particulate matter 2.5 micrometers or smaller (PM2.5) is 151 or greater or where “employer[s] should reasonably anticipate that employees may be exposed to wildfire smoke.” Cal/OSHA has published more information on the wildfire smoke standards on its website.
California Wage and Hour Requirements
- Nonexempt employees. Even during workplace disruptions caused by wildfires, California law and the Fair Labor Standards Act (FLSA) require that employers pay nonexempt employees for all work performed, and all hours worked must be recorded and tracked. Such disruptions also may result in overtime hours for other employees who are able to work.
- Exempt employees. Exempt employees must still be paid for an entire week if they work any portion of a workweek, even if their physical work location is closed or they are forced to stay home and/or evacuate.
- Reporting time pay requirements. California requires employers to pay “reporting time” each day an employee reports for a scheduled day’s work but is provided less than half of the employee’s usual or scheduled day’s work. However, reporting time obligations do not apply when “the interruption of work is caused by an Act of God or other cause not within the employer’s control.” (IWC Orders 1-16, Section 5(C)).
Los Angeles’s Fair Work Week Ordinance
The City of Los Angeles has confirmed that store closures caused by wildfires will be considered an exception to Los Angeles’s Fair Work Week Ordinance. The ordinance typically requires covered employers to provide employees with notice of their work schedules at least fourteen days in advance of the start of the work period and allows employees to decline hours if an employer makes changes to a shift or a work location after the notice deadline. The ordinance includes exceptions when employers’ operations are compromised due to force majeure, including fires, floods, earthquakes, epidemics, quarantine restrictions and other natural disasters or civil disturbances.
Leaves of Absence
Employers may be required to provide leave under the California Family Rights Act (CFRA) and/or Family and Medical Leave Act (FMLA) to employees with a serious health condition caused or exacerbated by a natural disaster, including smoke from wildfires. Employees also may need CFRA/FMLA leave to provide care for a covered family member suffering a serious health condition or medical emergency caused by a natural disaster.
Cal-WARN
The Los Angeles wildfires may force employers to reduce staff and/or temporarily shut down operations. The California Worker Adjustment and Retraining Notification Act (Cal-WARN) generally requires sixty days’ notice of a mass layoff, plant closure or relocation of at least one hundred miles. However, Cal-WARN exempts employers from providing this notice in situations involving “physical calamity.”