The Workplace Podcast: Compliance During Emergency Conditions
In this episode of The Workplace podcast, CalChamber employment law expert Matthew Roberts sits down with CalChamber Labor Law Helpline expert Ellen Savage to discuss what has affected every Californian over the last few weeks – natural disasters and their specific impacts on workers and workplaces.
Wages and Hours During Emergency Conditions
Paying employees correctly during emergency conditions is often a hot topic on the Helpline. For non-exempt or hourly employees, employers should be mindful that the time an employer may require an employee to wait for work, for example while waiting for power to come back without excusing employees, must be paid. California also has reporting time pay; if you send an employee home before they’ve worked at least half their shift, you may be required to pay them for half of their expected shift. However, there are many exceptions to this law which you can see more of on HR California.
For exempt employees during emergency conditions, the guidance is less clear. The general rule applies: if an exempt employee works in a week, they get paid for the week. If an act of God occurs and the employee is ready and willing to work, but unable to for some reason, Roberts suggests using best practice and paying the employee. However, Savage also notes that in today’s remote work environment, it is easy for exempt employees to perform work remotely. If an employer wants to exercise an exception and doesn’t believe the employee should be paid, the employer should first consult legal counsel.
Leaves of Absence
During emergency conditions, there may be some unique leaves of absence issues as employees may leave work for various reasons. Employees may take leave for volunteer civil service, such as volunteer firefighters, reserve peace officers, etc. There may be unique circumstances for each of these which are further outlined on HR California; however, the general consensus is to let those emergency workers do the job they need to do in order to help keep everyone safe.
There is also a school emergency leave law, which is a part of the school activities leave law, which states that if a parent needs to leave work due to an emergency, the parent is entitled to take up to 40 hours each year for this situation. However, it doesn’t have to be a parent; this could apply to any sort of guardian who stands in loco parentis to the child. This applies to employers with 25 employees or more. The law requires advance notice, but does not define what advance notice is.
According to OSHA principles, employers have a general duty to ensure the health and safety of their workforce. Employees have the right to refuse work, without repercussions, in conditions that could increase the risk of harm.
As of January 1 of this year, SB 1044 builds on this OSHA principle, stating that during emergency conditions an employer can’t punish an employee if they leave work, or refuse to report to work, if they have a reasonable belief that work is unsafe. SB 1044 defines an emergency condition as a disaster or extreme peril to the safety of people or property at the workplace caused by natural forces or by a criminal act (such as an active shooter).
The law requests employees to give advanced notice when feasible before failing to report to or leave work, letting employees use their judgment based off foreseeability of the emergency. There’s also an aspect of this law which has brought a lot of questions into the Helpline. For workplaces that don’t allow cell phones, SB 1044 prohibits employers from enforcing personal cell phone policies if the device is used during an emergency condition for safety reasons.
Savage notes two important employment benefits to be aware of during emergency conditions. First, during a declared emergency by the governor, the one-week waiting period for unemployment insurance benefits is waived. Second, under certain circumstances when there is a disaster, employers have a longer time to file certain things with the Employment Development Department (EDD), payroll taxes, and other reports. The EDD’s website is a great resource for more information on disaster assistance.
For more information on workplace compliance during emergency conditions, visit HR California.