California Wildfires: What Employers Need to Know

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More than a dozen wildfires are raging up and down California, forcing evacuations and bringing tragedy and loss. As of August 9, the Carr fire in Shasta County had taken several lives, destroyed more than 1,000 residences, burned more than 177,000 acres and was 48% contained. The Mendocino Complex fire—which consists of the River and Ranch fires burning through rural Lake, Colusa and Mendocino counties—has become the largest in California history. As of August 9, it had burned more than 304,000 acres and was 51% contained.

The California Chamber of Commerce recognizes the hardship businesses and their employees are experiencing due to the fires raging through California. To those impacted who do not currently have access to the Labor Law Helpline, we are extending access at no charge. You may contact CalChamber at (800) 649-4921.

Below are a few things you should know about paying employees, leaves of absences, workplace safety, and planning ahead for emergencies.

Paying Employees

Even in an emergency, employers must be mindful of obligations under state employment laws, including pay issues 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 whole 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 prior to being sent home:

• Operations can’t start or continue due to threats to you or your 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 your business closes 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 is 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 even if pay is not required — 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!

EDD Resources for Disaster Victims and Employers

The California Employment Development Department (EDD) provides a variety of disaster-related services to individuals and businesses affected by disasters, including assistance with filing claims for unemployment insurance (UI) benefits and time extensions for filing and paying payroll taxes.

Generally, once the Governor has issued an emergency proclamation for a specific disaster area, the one-week waiting period for UI benefits is waived, and individuals can begin receiving partial wage replacement benefits for the first week they are unemployed due to the disaster. The EDD maintains a current list of state-declared disasters where the waiting period has been waived.

In addition, as with the 2017 wildfires, a Presidential Disaster Declaration makes federal Disaster Unemployment Assistance (DUA) benefits available. DUA provides temporary unemployment benefits to people whose jobs or work hours are directly impacted by emergencies. The EDD will provide updates on its website as DUA benefits become available.

Employers directly affected by a disaster may request extensions of time from the EDD to file state payroll reports and/or deposit payroll taxes — some employer extensions have already been granted. The Internal Revenue Service also may provide tax assistance during disasters.

Employers and affected workers should stay abreast of recent developments by visiting www.edd.ca.gov.

Leaves of Absence for Emergency Personnel

Some of your employees may serve as volunteers for local fire departments or other emergency response entities. All employers must provide leaves of absence for employees who are required to perform emergency duty. Employers are not required to compensate the employee during this time off.

Leave for Health Issues

Employees may be entitled to time off to deal with health issues resulting from the disaster.

For instance, employees may use their California mandatory paid sick leave for care or treatment of their own health condition or that of 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 and 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). An employee who suffers a physical or mental injury because of a natural disaster 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 (non-work 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 EDD can provide support services for employers and employees with these determinations.

School or Childcare 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 is closed due to a natural disaster, such as a fire, earthquake or flood. For emergencies, the time must not exceed 40 hours per year.

Keeping Workers Safe and Cal/OSHA Guidance

Wildfires pose health hazards. Smoke can contain chemicals and fine particles that harm health. And other hazards, such as electrical hazards, unstable structures, flammable gases, ash, soot and dust, are rampant.

As an employer, you have an obligation to create and maintain a safe workplace for your employees. Cal/OSHA advises employers to take special precautions to protect workers from hazards related to fires and smoke.

Cal/OSHA provides guidance on how to keep workers safe in heavy smoke conditions and during fire clean-up.

Planning Ahead

The single, most important thing employers can do is create an Emergency Action Plan (EAP) and communicate that plan to employees. All California employers are required to have an EAP designating the actions that must be taken to protect employees from fire and other emergencies, as well as a Fire Prevention Plan (FPP) that details the fire hazards your employees may face and how to handle a fire should the situation arise. Employers should inform employees that these plans exist and what steps they outline.

When employees are initially assigned to a job or transferred to a new position, the employer should review the EAP and FPP with employees so they can protect themselves in the event of an emergency. Employers should retrain employees if the EAP or FPP is changed and should periodically conduct emergency training and drills.

When considering emergencies, employers should plan how they will handle and communicate office closings and determine who will make the final decision on whether to close. Also, determine if alternative workplaces are available, whether certain employees can work from home, or whether to shut down all work during the emergency.

Informational Resources Available

CalChamber members can find more information on Emergency Action Plans and Fire Prevention Plans in the “Workplace Safety” section of the HR Library at HRCalifornia.com.

Cal/OSHA offers resources as well.

Staff Contact: Gail Cecchettini Whaley

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Gail Cecchettini Whaley
About Gail Cecchettini Whaley
Gail Cecchettini Whaley, senior employment law counsel, joined the CalChamber in June 2011 with nearly 20 years of practice in employment law. Since joining the CalChamber staff, Whaley has been chief author of the popular HRWatchdog blog and HRCalifornia Extra e-newsletter. She is a contributor and editor for CalChamber’s various human resources compliance products, including the HRCalifornia website, and serves as a content expert. She earned a B.A. with high honors from the University of California, Berkeley, and a J.D. from the University of Southern California.