In the wake of California’s ongoing battle with the various wildfires plaguing the state, Governor Gavin Newsom signed a “Proclamation of a State of Emergency” on January 7, 2025. As California continues to be impacted by these wildfires, here are some reminders to help employers manage the challenges associated with this disaster.
Employee Assistance:
If any of your employees have lost their homes, suffered from property damage, or need additional assistance, there are three ways that employers can assist their employees:
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Disaster Relief Assistance: The Internal Revenue Code allows employers to reimburse or pay reasonable and necessary personal, family, living, or funeral expenses incurred as a result of a qualified disaster, assuming such costs are not covered by insurance or the like. If an employer offers such assistance, it is nontaxable to the recipient.
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Leave-Sharing Options: Employers can create a leave-sharing program which allows employees to donate any of their accrued and unused paid time off to employees impacted by the wildfires. These programs must ensure that employees who donate their leave time are not taxed on the leave hours that were donated to others.
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Hardship Distributions: Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, and pursuant to the IRS regulations, employers can amend their 401(k) plans to allow for hardship distributions for expenses and losses incurred by employees on account of the ongoing wildfires, which FEMA declared a disaster as of January 7, 2025.
Employee Compensation and Wage and Hour Compliance:
Although the wildfires may impact employers’ ordinary course of business, employers are still required to comply with the California Labor Code and wage and hour laws.
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Exempt Employees: Exempt employees are entitled to their full week of pay if they perform any work during the workweek regardless of how minimal the work might be.
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Non-Exempt Employees: Non-exempt employees are generally only entitled to be paid for their actual hours worked. However, there are a few limited circumstances in which non-exempt employees may be owed additional compensation.
- While non-exempt employees are typically entitled to report time compensation when they arrive at their scheduled shift and are sent home before completing at least half of their shift, there are exceptions for this when the circumstances are out of the employer’s control, such as a natural disaster like wildfires.
Cal/OSHA Wildfire Compliance and Workplace Safety:
- The California Division of Occupational Safety and Health (Cal/OSHA) requires that employers protect employees from various workplace hazards, including wildfires and other hazards that arise from natural disasters.
- As it pertains to wildfires, employers are required to protect their employees from smoke exposure. Employers must provide respirators (such as N95 respirators) to all employees for all worksites experiencing an Air Quality Index score that exceeds 151. If the Air Quality Index exceeds 500, employers must require the use of respirators.
Employee Accommodations and Leaves of Absences
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Paid Sick Leave: Employees can use their accrued sick leave due to health issues arising from the wildfires or to provide care for a family member impacted by the wildfires.
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FMLA/CFRA Leave: If an employee suffers from a serious health condition due to the wildfires and are eligibile, employers are required to treat the employees the same as any other employee who seeks similar FMLA/CFRA leave.
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Reasonable Accommodations: The wildfires may affect employees who suffer from respiratory or other medical conditions. If an employee seeks an accommodation due to a medical condition that has been exacerbated by the wildfires, employers are required to engage in an interactive process to determine what reasonable accommodations can be provided.
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Vacation Time: Employers will need to re-visit their vacation time policies to determine whether employees are permitted to use vacation time during this period. Employers must apply their vacation policy uniformly to all employees to ensure consistency and compliance with applicable laws.
To all of the people and employers doing business in California, please know you are in our thoughts during this stressful time.
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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.
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