As of January 1, 2023, California employers may not take or threaten negative actions against any employee who refuses to report to or leaves their workplace or worksite during an emergency condition when the employee has a reasonable belief that their workplace is unsafe.
Senate Bill 1044 was signed into state law on September 29, 2022, and all employers should be aware of how this new labor law will affect both employers and workers — especially because there is no exemption to the law based on the number of workers a business employs.
However, the new law does includes one major exception to emergency conditions by spelling out that a health pandemic is not considered an emergency condition.
To assure compliance, employers should know first, how the terms “emergency condition” and “reasonable belief” are defined in the enacted legislation, and second, the exceptions to the new law.
Emergency condition is defined as the existence of either:
- “Conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act,” or
- “An order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act.”
A reasonable belief that a workplace or worksite is unsafe is defined as when “a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises.”
In addition, an employer’s compliance or noncompliance with health and safety regulations specific to the emergency condition shall be a relevant factor if:
- This information is known to the employee at the time of the emergency condition; or
- The employee received training on the health and safety regulations mandated by law specific to the emergency condition.
In addition to prohibiting employer retaliation against workers who don’t report to or leave the worksite during emergency conditions, the new state law also prohibit employers from preventing employees from accessing their mobile or other communication device to:
- Seek emergency assistance.
- Assess the safety of the situation.
- Communicate with another person, including a child, to confirm their safety.
SB 1044 also requires the employee, when feasible, to provide the employer with notice of the emergency condition as soon as possible.
Which Employees Can’t Refuse to Work under Emergency Conditions?
Not all classifications of employees are covered by SB 1044, which includes these employees who are exceptions to the law:
- First responders.
- Disaster service workers.
- An employee who is required by law to render aid or remain on the premises in case of an emergency.
- An employee or contractor of a health care facility who provides direct patient care and provides services supporting patient care operations during an emergency or is required by law or policy to participate in emergency response or evacuation.
- An employee of a private entity that contracts with the state or any city, county, or political subdivision of the state, including a special district, for purposes of providing or aiding in emergency services.
- An employee working on a military base or in the defense industrial base sector.
- An employee performing essential work on nuclear reactors or nuclear materials or waste.
- An employee of a company providing utility, communications, energy, or roadside assistance while the employee is actively engaged in or is being called upon to aid in emergency response, including maintaining public access to services such as energy and water during the emergency.
- An employee of a licensed residential care facility.
- An employee of a depository institution.
- A transportation employee participating directly in emergency evacuations during an active evacuation.
- An employee of certain privately contracted private fire prevention resources.
- An employee whose primary duties include assisting members of the public to evacuate in case of an emergency.
Are You an Employer in Need of Legal Advice?
SB 1044 is one of several new labor laws that took effect on January 1 that employers should be aware of — and make policy changes where needed for compliance. LawPLA offers expert legal advice in navigating the new and revised state laws surrounding employment. We defend employers who are accused of noncompliance, in court or before the state labor board.