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California considers law allowing employees to leave work when they feel unsafe
United States | Publication | April 2022
Currently pending before the California Senate is SB 1044, a bill that would allow employees to refuse to come to work, or to walk off the job, whenever they feel unsafe or whenever there is a declared state of emergency. The bill also would prohibit employers from preventing employees from using their mobile devices during an emergency. The most recent amendments to the bill partially address employer concerns about the scope of the bill. Nevertheless, the bill would create an additional exception to at-will employment and has been labeled a “job-killer” by the California Chamber of Commerce.
The key provisions of the bill are as follows:
In the event of a state of emergency or an emergency condition, an employer shall not do either of the following:
(1) Take or threaten adverse action against any employee refusing to report to, or leaving, a workplace within the affected area because the employee feels unsafe.
(2) Prevent any employee 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 verify their safety.
The phrase “emergency condition” is defined as either “(1) An event that poses serious danger to the structure of workplace or to a worker’s immediate health and safety. [or] (2) An order to evacuate a workplace, a worker’s home, or the school of a worker’s child.”
Sponsors and supporters of SB 1044 insist the law is necessary, and point to recent natural disasters and active shooter scenarios in which employees were seriously injured or even killed at work when they were allegedly prevented from stopping work or leaving the worksite. Opponents claim the law is unnecessary, as the California Labor Code already protects from adverse employment action employees who report unsafe working condition (Section 6310) and those who refuse to perform work in violation of prescribed safety standards, where the violation would create a real and apparent hazard to the employee or other employees (Section 6311).
The most recent amendments to the bill require employees to give notice “when feasible” and specify that the job protection applies not to an existing state of emergency (such as the COVID-19 pandemic), but to any states of emergency that are declared after enactment of the legislation.
Employees do not need to show how the emergency impacts them, other than a statement that they feel subjectively unsafe. Critics point out that an employer could face damages for wrongful termination under this provision and civil penalties under the Private Attorneys General Act, or PAGA.
We will continue to monitor the status of this legislation.
Sponsors and supporters of SB 1044 insist the law is necessary, and point to recent natural disasters and active shooter scenarios in which employees were seriously injured or even killed at work when they were allegedly prevented from stopping work or leaving the worksite. Opponents claim the law is unnecessary, as the California Labor Code already protects from adverse employment action employees who report unsafe working condition (Section 6310) and those who refuse to perform work in violation of prescribed safety standards, where the violation would create a real and apparent hazard to the employee or other employees (Section 6311).
The most recent amendments to the bill require employees to give notice “when feasible” and specify that the job protection applies not to an existing state of emergency (such as the COVID-19 pandemic), but to any states of emergency that are declared after enactment of the legislation.
Employees do not need to show how the emergency impacts them, other than a statement that they feel subjectively unsafe. Critics point out that an employer could face damages for wrongful termination under this provision and civil penalties under the Private Attorneys General Act, or PAGA.
We will continue to monitor the status of this legislation.
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