With a new series of wildfires flaring up this month, the California Chamber of Commerce presents below responses to questions often received from the employer community about how to help employees and a recent Cal/OSHA advisory on worker safety.
Employers must remember some key obligations.
Even in an emergency, employers must be mindful of obligations under state employment laws and consider pay issues for exempt and nonexempt employees related to office closures.
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 entire week, however, employers don’t need to pay exempt employees.
In emergencies, special pay rules apply for nonexempt employees.
If your business shuts down for any of the following reasons, you must pay nonexempt employees only for the hours they worked before being sent home:
- Operations can’t start or continue due to threats to you 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 you shut down your business at your discretion (and not for one of the above reasons), reporting time pay 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: pay for one-half of the scheduled shift, but no less than two hours and no more than four hours.
Of course, employers are always free to pay employees or let them use vacation or other personal time. Many employers may choose to provide some paid time during emergencies. Just remember to be consistent!
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, he/she may be entitled to protections under these laws.
In some situations, State Disability Insurance (SDI) partial wage replacement benefits may be available for individuals injured by the disaster (nonwork-related injury). Similarly, Paid Family Leave (PFL) partial wage replacement benefits may be available for workers who take time off to care for a covered family member injured in the disaster. The Employment Development Department can provide support services for employers and employees with these determinations.
School or Child Care Leave
Employers with 25 or more employees working at the same location may need to provide unpaid time off to employees whose children’s school or child care closed due to a natural disaster, such as a fire, earthquake or flood. For emergencies, the time must not exceed 40 hours per year.
Cal/OSHA issued an advisory on Friday reminding employers that special precautions must be taken to protect workers from hazards from wildfire smoke.
When employees are working outdoors where the air is affected by wildfire smoke, employers are required by Cal/OSHA’s standards on Control of Harmful Exposure to Employees and Respiratory Protection to determine if the outdoor air is a “harmful exposure” to employees. Exposure is harmful when the pollution or contaminants in the air cause (or are likely to cause) injury, illness, disease, impairment or loss of function.
Local air quality districts provide information on outdoor air that can assist employers in determining if the outside air is harmful to employees. Employers should pay special attention when the outdoor air quality for airborne particles is “unhealthy,” “very unhealthy,” or “hazardous.” The outdoor air quality is posted at the U.S. Environmental Protection Agency website, airnow.gov.
When exposure to wildfire smoke is considered harmful, employers are required to take the following measures to protect workers:
- Implement feasible modifications to the workplace to reduce exposure. Examples include providing enclosed structures or vehicles for employees to work in, where the air is filtered.
- Implement practicable changes to work procedures or schedules. Examples include changing the location where employees work or reducing the amount of time they work outdoors.
- Provide proper respiratory protection equipment, such as disposable respirators, if the previous measures are not feasible or do not prevent harmful exposures.
- To filter out fine particles, respirators must be labeled N-95, N-99, N-100, R-95, P-95, P-99, or P-100, and must be labeled as approved by the U.S. National Institute for Occupational Safety and Health (NIOSH).