The bill, SB 1044 (Durazo; D-Los Angeles), allows employees to leave work or refuse to show up to work if the employee subjectively feels unsafe regardless of existing health and safety standards or whether the employer has provided health and safety protections and subjects employers to costly Private Attorneys General Act (PAGA) lawsuits if they dispute the employee’s decision or need to have another employee take over any job duties.
Earlier this month, a coalition made up of more than 70 business organizations submitted a letter to state legislators pointing out that the bill ignores current worker protections under the California Division of Occupational Safety and Health (Cal/OSHA); hinders emergency response and workplace safety; and broadly defines “state of emergency” to encompass states of emergency that last for years.
Ignores Existing Protections
Workers have significant protections under current law, including a right to refuse dangerous work. All California employers have a legal duty to ensure that the place of employment is safe and healthful.
Employers may not require workers to be at a location that is not safe or healthful and must do everything reasonably necessary to protect the life, safety, and health of employees.
Across industries and workplaces, employers must at a minimum have 1) an Emergency Action Plan, 2) Fire Prevention Plan, and 3) Injury and Illness Prevention Program. In addition, Cal/OSHA has many hazard-specific regulations which address the issues underlying recent states of emergency in California, including: wildfire smoke, outdoor heat and COVID-19. Cal/OSHA will soon be issuing regulations specific to indoor heat.
Further, in 2020, the Legislature made it a crime to require an employee to remain in their place of work if there was a notice to evacuate or leave. SB 1044 completely ignores the protections that these regulations already provide in making long-term emergency topics—such as wildfire and heat—safer for California’s workplaces. Instead, this bill just allows workers to walk away from their jobs.
Moreover, any actions taken by the employer to address an employee leaving the worksite would lead to legal perils. An employer who disciplines an employee for leaving the workplace would be subject to a lawsuit and penalties under PAGA. And any employer who replaces the worker in order to keep the workplace functioning or to provide time-sensitive services could face a retaliation lawsuit.
In other words—SB 1044 gives such broad discretion to employees that if they walk away from a completely safe workplace, the employer could do little in response without risking litigation.
Essential workers are labeled essential for a reason. Their work is vital to a functioning society, especially in times of emergency. Police, firefighters, healthcare workers, couriers, food service workers, agriculture workers and more all provide essential services that others depend on and aid emergency response. Some sectors or professions, such as hospitals, even have legally mandated staffing ratio requirements. SB 1044 contains no exceptions for those industries or industries that aid emergency response.
By failing to consider the safety consequences of allowing emergency response personnel to walk off the job, SB 1044 fails to take into account the safety of the public.
Further, its broad applicability raises safety concerns for other employees in the workplace. For example, SB 1044 undermines employers’ evacuation plans (under which employees fulfill critical roles in ensuring the safe departure of other employees during a true emergency) by potentially removing key personnel from emergency response procedures.
In addition, a blanket prohibition on employers’ ability to restrict use of personal cell phones is also problematic. During an emergency or evacuation, it often is necessary to limit use of cell phones to carry out certain functions or disseminate emergency instructions. An employer may need to place some limitations on the use of cell phones to ensure duties are carried out and that emergency communications can be promptly disseminated.
State of Emergency That Lasts Years
SB 1044 permits employees to not show up for work or to leave unannounced if they “feel unsafe” during a “state of emergency” or “emergency condition.” Bill amendments made on March 23, 2022 do not sufficiently limit the definition of “state of emergency.”
“State of emergency” includes any state of emergency, local emergency, or presidential proclamation of major disaster or emergency caused by natural forces in the county where the worker lives or works. However, many states of emergency are statewide and therefore affect every county.
States of emergency often remain in effect for significant periods of time, long past the time of a pressing emergency. For example, on December 23, 2019, Governor Gavin Newsom terminated more than 70 ongoing states of emergency that had been declared at various times over the last decade, from January 27, 2011 to November 30, 2018. Just two months ago, on February 25, 2022, the Governor issued an executive order terminating 12 ongoing states of emergency, some dating back to 2015. Those states of emergency ranged from heat waves to civil unrest to fires to gas leaks.
The March 23 amendments provide that “[t]his section is not intended to apply when an official state of emergency remains in place but emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worker, or the worker’s home have ceased.” The issue is that it is up to the employee to subjectively decide what is imminent and ongoing. A fire that is largely under control may still be producing smoke. Regardless of whether Cal/OSHA has deemed it safe to work when the air quality index (AQI) is at a specific level, the employee could refuse to report to work.
The March 4, 2020, COVID-19 State of Emergency provides an important example of how SB 1044 would operate once a state of emergency is declared. That state of emergency remains in place after two years—despite considerable improvement in California’s COVID-19 status. Presently, we are at the lowest COVID-19 positivity rate since summer 2021.
The California Department of Public Health and Governor have deemed it safe for both adults and children to forgo masks, regardless of vaccination status. We have a vaccination rate of 74.5%, with some cities above 90%. Despite these improvements, under SB 1044, every single employee in California would have the right to walk out of work or stay home indefinitely simply because the March 4 state of emergency is still in place or because the employee subjectively believes that it qualifies as an “emergency condition.” All an employee would have to do is say they feel unsafe. Nothing else is needed. It is irrelevant whether the employer is following all rules set forth by Cal/OSHA or the Labor Code to address the cause of the state of emergency or emergency condition, whether personnel are needed to provide emergency services to the public, or even if the employer has gone above and beyond those requirements.
Further complicating matters—as explained above, employers would face a retaliation claim if they try to replace that worker or change their duties as a result of their departure. Even if it was unreasonable for the employee to claim they feel unsafe, it would cost the employer thousands of dollars to prove that in court.