In the fall of 2022, California Governor Newsom was busy passing several new laws affecting employers and employees, including Senate Bill (SB) 1044 regarding emergency conditions protections.
The new law allows employees the freedom to take measures to ensure their own safety in emergencies and protect their privacy in other ways. The text below outlines the law’s key components and explains how it affects employers and employees.
Critical Elements of SB 1044
As a result of SB 1044, employers will no longer be able to take adverse actions, threaten retaliation, or take other harmful and negatively impactful measures against employees who refuse to return to or leave work or work sites because they feel unsafe in the affected areas during serious emergencies.
Some examples of emergency conditions in which SB 1140 may apply include, but are not limited to, natural disasters, situations in which orders to evacuate are declared, active shooters, wildfires, and other conditions of extreme peril. In essence, the law pertains to any events resulting from criminal acts or natural and extreme events.
Providing Notice: Whenever possible, employees should make reasonable efforts to notify their employers if they have to leave, cannot report to their workplace or job site, or return to work due to such events. In instances where employees cannot notify the employer, they must make attempts to do so as soon after not being able to come in or having to leave.
Smartphone and Other Mobile Device Accessibility Protections
Moreover, SB 1044 prohibits employers from preventing or discouraging workers from accessing their cell phones or other mobile communication devices. Employees are now protected and able to use their devices to obtain emergency assistance, assess the situation’s safety, or communicate with someone to confirm their safety. Public and private entities employers are not allowed to prevent employees from accessing their personal phones during emergency conditions, as described above.
Notably, a few classes of workers are exempt from the law (SB 1140), including first responders, disaster service workers, and other employees duty-bound to render aid.
Is SB 1044’s language clear and easily applicable?
The law’s wording transformed before its final signed-off version. However, employers (and employees) may have some questions. For instance, does the law apply to public health pandemics?
Health pandemics do not constitute emergency conditions, so SB 1044 will not apply to situations where an employee feels unsafe, for instance, due to COVID-19. In order to comprehend the law and determine which scenarios it applies to, it is best to look at the case or event from the perspective of an average rational person. For example, employers and employees may benefit and receive clarity by asking themselves if a reasonable person would conclude that entering or remaining on the premises poses a real risk of death or severe injury. If the answer is yes, the worker’s belief of feeling unsafe or perilous is reasonable. Leaving or not reporting to their work would likely be protected under SB 1044, as would using a mobile communication device.
Another area in which the language of SB 1140 may draw confusion is regarding no-shows and walk-offs. SB 1140 wording has been described as vague and ambiguous, particularly regarding the provisions concerning notifying employers when the extreme emergency calls for leaving work or not reporting. “When feasible,” employees are to inform the employer of the emergency conditions that require them to leave or refuse to report before their departure or before their shift is scheduled to start.
Yet, “feasible” is not defined and may make it difficult for employers to draw the line and establish between employees who are not showing up or informing in a reasonable amount of time due to an actual critical emergency or an employee who simply is skipping out on work. The bill does outline what an employee should do when it is “not feasible” to report or give notice. In such an instance, the employee must notify their employer “as soon as possible.” However, who determines when and what circumstances make it “possible” for the employee to communicate with their employer regarding the absence or leave?
Nevertheless, the above is not intended to apply to employees, the work site, their homes, or the workplace when an emergency event has ended or is no longer an imminent and ongoing danger.
When Does SB 1140 go into effect, and how to comply?
Sb 1140, which went into on Jan. 1, 2023, could raise legal gray areas, mishaps, and issues for employers, even those who are informed and prudent regarding the new legislation. California employers should post notices to inform their employees of the law and their rights and updating their policies and handbooks. A seasoned California employment law attorney can aid and support these legal matters and initiatives as well as answer questions concerning how the law applies to their enterprise. It is important to ensure your business is compliant with the most recent California statutes and regulations, as several new laws regarding employers and employees took effect at the start of the new year. Contact an experienced California Employment Attorney today for a free and confidential consultation.
