Employee Rights During Natural Disasters

Employee Rights During Natural Disasters

In many areas, this summer has broken temperature records, creating raging fires in California, and hurricanes in other parts of the nation. From a human resource compliance perspective, there are employee rights that California businesses should consider, as well as options to assist employees when a natural disaster hits your community and impacts your staff.

Refusal to Report to Work

First, California employers should be aware of a relatively new law that went into effect last year, known as SB 1044, which allows an employee to refuse to report to work during an emergency condition.

More specifically, the law prohibits an employer from taking or threatening adverse action (e.g., discipline) against any employee for refusing to report to work or leaving the worksite when the employee has a reasonable belief it is unsafe due to an emergency condition.

An Emergency Condition is defined as either:

1. Conditions of disaster or extreme peril to the safety of persons or property caused by natural forces or a criminal act; or
2. An order to evacuate a workplace, worksite, or worker's home, or the school of a worker's child due to a natural disaster or a criminal act.

Of course, natural disasters may include events such as wildfires, flooding, earthquakes, etc. Criminal acts may encompass events such as bomb threats and active shooters.

Note that the law also prohibits an employer from preventing any employee access to their mobile device to seek emergency assistance, assess the safety of the situation, or to communicate with a person to confirm their safety. As such, make sure that if you do restrict cellphone use in your workplace, your policies carves out emergency circumstances.

The law does not apply to specific groups, such as first responders and certain healthcare workers.

Reporting Time Pay

Employers may also wonder whether reporting time pay is owed if an employee shows up for work, but is sent home early due to a natural disaster. This would actually qualify as an exception to normal reporting time pay requirements, however, it's not recommended to deny reporting time pay just based on "bad weather."

As a refresher, in California, employers must generally pay a non-exempt employee "reporting time pay," when the employee reports for their regular shift and works less than half of their scheduled shift. In this case, they must be paid at least half of their scheduled hours-never less than 2 hours, nor is it required to pay more than 4 hours.

Additional exceptions to reporting time pay requirements occur when:

1. Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities (e.g., bomb threat);
2. Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system (e.g., power goes out during a storm); or
3. The interruption of work is caused by an Act of God or other cause not within the employer's control (e.g., an earthquake, wildfire, etc.).

Employers should be cautious not to interpret these exceptions too broadly. For example, if there is a heavy rain storm, but the business still has functioning utilities, electricity, etc., guidance from the Labor Commissioner suggests employers should monitor the weather and anticipate scheduling issues. If you turn away employees because it is raining and it prevents them from doing work (e.g., harvesting produce), but it does not rise to the level of a natural disaster, reporting time pay is likely owed.

Leaves of Absence

Finally, beyond compliance, employers should consider the "human" side of natural disasters. For example, if an employee just lost their home and belongings in a wildfire, they will need time to recover, both from a practical standpoint and an emotional one.

Even if an employee does not have a protected leave of absence available, consider any optional leave policies, such as offering a personal leave of absence. Depending on your policy, a personal leave may be paid or unpaid, and you may choose whether to continue healthcare benefits during the leave.

For employers that offer Employee Assistance Programs (EAPs), make sure you communicate what services are available to employees, such as counseling.

For additional questions on employee rights and employer policy options, CEA members may call us at 800.399.5331 or email us at [email protected].