The Palisades Fire — and the other devasting Southern California wildfires — are severely impacting lives and property leading California Governor Gavin Newsom to issue an emergency proclamation for Los Angeles and Ventura counties. These wildfires are creating unhealthy air, power outages and the inability to access homes and businesses. Employers impacted by these fires need to be aware of and comply with wildfire smoke regulations, how to pay and offer time off to employees affected by wildfires, and new hire notification obligations.
Wildfire Smoke Regulations
The California Division of Occupation Safety and Health (Cal/OSHA) monitors and enforces rules related to unhealthy air as a result of wildfire smoke through its Protection from Wildfire Smoke regulation. Employers whose workplace may be affected by air quality issues related to wildfire smoke are required to comply with the regulation unless:
- The worksite is a completely enclosed building or vehicle with mechanical ventilation, windows and doors that remain closed except when necessary to enter and exit the building or vehicle; or
- The employee’s exposure is limited to one cumulative hour or shorter during their shift; or
- The employee is a firefighter engaged in wildland firefighting.
Employers should be cautious about the broad coverage of this regulation as it includes employees who work both indoors and outdoors as long as the outdoor workers exceeds one cumulative hour during their shift as well as indoor locations that may have doors or windows regularly open such as retail establishments.
Employers covered by the regulation must monitor the Air Quality Index (AQI) for levels of a particulate matter called PM 2.5, which can be monitored through the U.S. Environment Protection Agency’s AirNow website, amongst other resources.
If the AQI for a worksite exceeds 150 for PM 2.5, employers must immediately act to reduce worker exposure to wildfire smoke by relocating workers either to an enclosed building with mechanical filtration or another outdoor location where the AQI for PM 2.5 is lower than 150, if feasible. Additionally, when the AQI for PM 2.5 is between 151 to 500, employers must offer — for voluntary use — respiratory equipment such a N95 masks.
If the AQI for PM 2.5 exceeds 500, respirator use is mandatory, and employers must ensure a proper mask fit so that the worker is medically able to wear a respirator while working.
Cal/OSHA maintains a resource page with more information for complying with the Wildfire Smoke Regulations.
Paying Employees During Natural Disasters
During wildfires — either as a result of smoke or civil authorities’ orders to evacuate or close access — businesses may have to close or alter their hours of operation. This can impact how workers are paid whether they are nonexempt or exempt.
Nonexempt workers are paid for all hours actually worked; however, a special reporting time pay rule requires employers to pay additional wages at the employee’s regular rate of pay if the employee does not work at least half of their scheduled shift because the employer did not put the employee to work. This often occurs when an employer sends a nonexempt employee home early because there is either no work or less work than needed.
In the case of wildfires, if an employer sends a nonexempt employee home prior to completing half their shift, they will not owe reporting time pay — if the reason is due to acts of God or other causes not within the employer’s control such as wildfires or floods, or when recommended by a civil authority to cease operations. So, any employer who may have to send nonexempt employees home early due to wildfire conditions will only pay for the actual hours worked.
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, however, must always be paid their standard salary for the week whenever they perform any work in a workweek. So, if an exempt employee worked the first day of the workweek, and the wildfires prevented any other work for the workweek, the exempt employee must be paid their entire salary for the week.
If, however, the wildfires disrupt operation — such that the exempt employee performs no work at all during the workweek — then the employer may choose not to pay the employee’s salary for that week.
Employees who lose income as a result of the wildfires may be able to make unemployment insurance benefit claims immediately with the California Employment Development Department as the one-week waiting period for such claims is waived for areas affected by the Governor’s Emergency Proclamation.
Time Off
Effective January 1, 2025, California’s mandatory paid sick leave law — known as the Healthy Workplaces, Healthy Families Act — expressly allows agricultural employees who work outside to avoid smoke, heat or flooding conditions created by a local or state emergency, including when the employees’ worksites are closed due to smoke, heat or flooding to use time off under this program.
However, during wildfires, this may not be the only circumstance that an employee may utilize their paid sick leave under certain health-related circumstances as the law allows employees to use the time for the diagnosis, care or treatment of an existing health condition, or for preventative care for the employee or a qualifying family member. This means that if wildfire conditions are creating or exacerbating medical conditions the employee must respond to, they may use their paid sick leave under the law.
Whether an employee may utilize their vacation time will be up to an employer’s policy, and employers should be consistent with all employees as they apply that policy.
Additionally, if an employee needs time off because their child’s school or licensed daycare has unexpectedly closed as a result of the wildfires, they may be eligible for time off under California’s school activities leave. Employees who work at a location with 25 or more employees may take up to 40 hours of leave a year to either appear at a child’s school or daycare activities or in the event of an emergency, which includes closures or unexpected unavailability of the school or day care. This leave is unpaid.
New Hire Notification
As previously reported regarding the statewide emergency related to the avian flu, California amended its Labor Code section 2810.5 wage theft notice that employers provide to nonexempt new hires to include information related to relevant emergency proclamations. So this means, for employers in Los Angeles and Ventura counties, any nonexempt new hires who start within thirty days after January 7, 2025, will need to be notified on this form of the existence of the wildfire emergency proclamation if the emergency may affect their health and safety during their employment.
Developments will change rapidly due to wildfires, and employers should consult with legal counsel regarding any matters of legal significance to them during this period.
Staff Contact: Matthew J. Roberts
