California Employers Prohibited from Taking Adverse Action Against Employees during “Emergency Conditions”

Written by Jeremy Mittman and Celia Guzman

As of January 1, 2023, Senate Bill 1044 prohibits California employers from taking or threatening adverse action against an employee for refusing to report to, or leaving, the workplace due to a “reasonable belief”that the workplace is unsafe due to an “emergency condition.” 

Here’s what you need to know:

1. Emergency Condition.  An emergency condition is defined to mean 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 or a worker’s child due to a natural disaster or a criminal act.

2. Excludes Health Pandemics.  Notably, the definition specifically excludes a health pandemic from the definition of an emergency condition.  That means COVID-19 would not qualify as an emergency condition.

3. Reasonable Belief.  An employee has a reasonable belief that the workplace or worksite is unsafe if:

  • A reasonable person, under the circumstances known to the employee at that time, would conclude that there is a real danger of death or serious injury if that person enters or remains on the premises.

4. Existence/Training of Health and Safety Regulations.  A relevant factor in determining whether a belief is reasonable includes:

  • The existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations, if this information is known to the employee at the time of the emergency condition, or if the employee received training on health and safety regulations mandated by law specific to the emergency condition.

5. Must Allow Use of Cellphones.  Employers cannot prevent employees from accessing their mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to verify their safety.

6. Notification when Feasible or ASAP.  Employees must notify the employer of the emergency condition prior to leaving or refusing to report to work when feasible.  If not feasible, then the employee must notify the employer of the emergency condition after leaving or refusing to report as soon as possible.

7. Right to Remedy Violations.  Under the new law, employers have the right to remedy alleged violations pursuant to the Labor Code Private Attorneys General Act (PAGA) cure provisions.

Employers should revisit their attendance policies as well as any health and safety guidelines to make sure that they are compliant with SB 1044 and train supervisors on this new law.

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