In light of various emergencies and disasters throughout the state, the California Chamber of Commerce is educating employers about a few things they should know about paying employees, leaves of absences and planning ahead in emergencies.
Even in an emergency, employers must be mindful of obligations under state employment laws and consider pay issues for exempt and nonexempt employees 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 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 you shut down your business 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 would be eligible for reporting time pay: pay for one-half of the scheduled shift, no less than two hours and no more than four hours.
Of course, employers are always free to pay employees or let them use vacation or other personal time. Many employers may choose to provide some paid time during emergency situations. Just remember to be consistent!
Federal Disaster Unemployment Assistance (DUA) benefits are available for workers and self-employed individuals who lost jobs or had work hours substantially reduced as a result of recent California wildfires. DUA benefits can be applied for through the California Employment Development Department (EDD). The deadline for filing claims is November 16, 2017. The best way to apply is to use EDD’s online application at eapply4ui.edd.ca.gov.
Employers also may be able to request an extension for filing payroll reports and/or depositing state payroll taxes. More information about employee assistance and employer services can be found on EDD’s Disaster-Related Services page at www.edd.ca.gov.
Leave 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 that occur as a result of the disaster. For instance, employees may use their California mandatory paid sick leave for the care or treatment of a health condition for themselves or 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 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.
School or Child Care 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 emergency situations, the time must not exceed 40 hours per year.
Employers must remember their obligations to provide a safe workplace. Cal/OSHA is advising employers to take special precautions to protect workers from hazards from wildfire smoke.
Cal/OSHA has posted materials that provide guidance for employers and workers on working safely in conditions with heavy smoke caused by the wildfires.
The single, most important thing employers can do is create an Emergency Action Plan (EAP) and communicate that plan to employees. Employers should inform employees that the plan exists and what steps the plan outlines.
All California employers are required to have an EAP designating the actions that must be taken to protect employees from fire and other emergencies. California employers also must have a Fire Prevention Plan (FPP) that details the fire hazards your employees may face and how to handle a fire should the situation arise.
When employees are first assigned to a job or transferred to a new position, the employer should review parts of the EAP and FPP employees must know so they can protect themselves in 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. Determine also if alternative workplaces are available, whether certain employees can work from home or whether to shut down all work during the emergency.
CalChamber members can find more information on Emergency Action Plans on HRCalifornia. Cal/OSHA offers resources on workplace safety in the wildfire regions at www.dir.ca.gov.