On Sept. 29, Gov. Gavin Newsom signed into law SB 1044, which clarifies and expands the existing laws regulating an employer's conduct vis-à-vis its employees during an "emergency condition." The new law will be codified at Labor Code Section 1139 and will become effective Jan. 1, 2023.
Key Provisions in New Labor Code Section 1139
The new law prohibits an employer, in the event of an "emergency condition," from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a "reasonable belief" that the workplace or worksite is unsafe. (Labor Code Section 1139(b)(1).) This provision does not apply to certain, specified occupations as set forth in Section 1139(b)(1)(A)-(M).)
Section 1139(a)(1)(A) defines "emergency condition" as the existence of either of the following:
(i) 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.
(ii) An order to evacuate a workplace, a worksite, a worker's home, or the school of a worker's child due to natural disaster or a criminal act.
Section 1139(a)(1)(B) specifically provides: "Emergency condition" does not include a health pandemic. Hence, the statute does not apply to an employee's concerns about workplace safety as a result of the Covid pandemic.
Pursuant to Section 1139(a)(2) a " 'reasonable belief that the workplace or worksite is unsafe' " means that 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, the statute prohibits an employer from preventing any employee, including employees of public entities, from accessing the employee's mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. (Id. at § 1139(b)(2).) Again, this provision does not apply to certain occupations as set forth in Section 1139(b)(2)(C)(i)-(iii).)
The statute requires an employee, when feasible, to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite, as specified. If the prior notice is not feasible, the employee must notify the employer "as soon as possible." (Id. at § 1139(c).)
Finally, Section 1139(e) provides: "In any action by a current or former employee that could be brought pursuant to the Labor Code Private Attorneys General Act of 2004 (Part 13 (commencing with Section 2698)) for violations of this chapter, the employer shall have the right to cure alleged violations as set forth in Section 2699.3."
Interestingly, although the bill arose in the midst of the Covid pandemic, it specifically excludes a "health pandemic" from the definition of "emergency condition." Rather, the primary author of the bill, Senator Maria Elena Durazo (District 24), emphasized: "As climate-related disasters increase in intensity and frequency, we must ensure our laws are adequate to protect vulnerable workers." The Senator then cited to a number of situations where workers were required to work under hazardous conditions: (1) domestic workers and gardeners who, during the Getty Fire, were required to continue working in Los Angeles evacuation zones; (2) agricultural workers in Sonoma County who were required to continue picking produce during the Atlas/Tubbs fires; (3) landscapers and housekeepers who were among that 23 lost and 167 injured in the 2018 Montecito debris flow; and (4) Amazon workers and delivery persons who were required to continue working during recent tornadoes in Illinois. According to Senator Durazo, the new law "would enhance workers' protections during natural disasters by providing clear requirements for employers during these emergencies."
Potential Impact of the New Law
One can easily foresee the potential issues raised by the new law, and its impact on employees and employers, as well as the courts. For example, issues will certainly arise as to whether a particular event or condition is considered an "emergency condition" which would trigger the law's protections and requirements. In particular, what is considered a "disaster" or "extreme peril to the safety of persons or property?" What is considered a "natural force?" Moreover, given the nature of the situations to which this law is intended to apply - urgent conditions - employers will find it difficult to timely assess the situation without the assistance of counsel and will need to depend on the judgment and training of lower-level managers to adequately respond in such situations, risking liability.
The "reasonable belief" requirement will certainly be the subject of dispute. What is considered a "real" danger of death or "serious" injury? Although the statute is written to apply an objective standard for an employee's reasonable belief, how will that standard apply to employees with certain susceptibilities, either physical or mental?
Since an employee is not required to provide advance notice of leaving unless "feasible," employers may be left vulnerable if an employee leaves work without notice. The policy could also result in abuse of no cell phone use policies, although one would hope the policy will only be raised in the event of a true emergency.
In this era of remote-working, is an employee's home considered a "workplace" or "worksite" and, furthermore, does the law apply to dangerous conditions at a remote-working employee's home even though no "order to evacuate" has been issued?
Will standard liability insurance policies provide coverage to employers for alleged violations of the law?
Undoubtedly, these questions and more will be decided by the courts, which will likely become inundated with cases alleging violations of the law - including class actions and PAGA claims - since violation of this law carries liability under the Private Attorneys General Act. Although employers are permitted a cure, it is not clear how one would "cure" a failure to let the employee leave, although adverse employment actions taken in retaliation may be "cured."
For reprint rights or to order a copy of your photo:
Direct dial: 949-702-5390
Send a letter to the editor: