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Just recently, Governor Gavin Newsom signed Senate Bill (SB) 1044, which bans employers from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace if the employee reasonably believes that the workplace is unsafe, in the event of an emergency condition. The law is set to take effect on January 1, 2023. We explain the details below:
Definitions of "Emergency Condition" and "Reasonable Belief." As noted above, under the statute, the employee must have a reasonable belief of an emergency condition. SB 1044 defines a “reasonable belief" as whether "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."
Also, the statute defines “emergency condition” as the existence of either of the following:
- an event that poses serious danger to the structure of a workplace or to a worker’s immediate health and safety; or
- an order to evacuate a workplace, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.
Notably, an "emergency condition" does not include a health pandemic. Thus, SB 1044 does not apply in situations where the employee feels unsafe due to COVID-19.
The statute makes clear that SB 1044 does not apply "when the emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worksite, the worker, or the worker’s home have ceased."
Notice Requirement. The employee is required to notify the employer of the emergency condition causing the employee to leave or refuse to report to the workplace or worksite. If it is not feasible to give the employer prior notice, the employee must later notify the employer about the emergency condition that caused the employee to leave or refuse to report to the workplace.
Workers Excluded. The following workers are excluded from the protections of this new law detailed above:
- disaster service workers;
- employees required by law to render aid or remain on the premises in case of an emergency;
- employees or contractors of a health care facility who provide direct patient care, provide services supporting patient care operations during an emergency, or are required by law or policy to participate in an emergency response or evacuation;
- employees of a private entity that contract 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;
- employees working on a military base or in the defense industrial base sector;
- employees performing essential work on nuclear reactors or nuclear materials or waste;
- employees 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;
- employees of a licensed residential care facility;
- employees of a depository institution;
- transportation employees participating directly in emergency evacuations during an active evacuation;
- employees of a privately contracted private fire prevention resource; and
- employees whose primary duties include assisting members of the public to evacuate in case of an emergency.
Employers May Not Prevent Employees from Accessing Mobile Devices. SB 1044 also prohibits an employer from preventing employees from accessing their mobile device to seek emergency assistance, assess the safety of the situation, or communicate with another person to confirm their safety. However, this protection does not extend to employees of a depository institution, correctional facility, or "actively operating equipment".
Implications and Takeaways for Employers. Employers who dispute an employee's decision to leave the workplace because they feel unsafe would be subject to costly Private Attorneys General Act (PAGA) lawsuits. However, the statute specifies that employers would have the right to remedy the alleged violations pursuant to PAGA’s cure provisions. Thus, employers should act quickly in the event that they are notified of an alleged violation.
We also recommend that employers review relevant policies and ensure standard procedures in the case of an emergency condition. Employers should also train their supervisors on this new law and the proper organizational protocols to implement in the event of an emergency condition.
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