From paid leave to safety: Employer considerations amid California wildfires

We are deeply saddened by the devastation caused by the recent Southern California wildfires. Our hearts go out to everyone impacted—those who have lost loved ones, homes or livelihoods, and those enduring the uncertainty and fear that such disasters bring.

As a firm, we share in the collective grief and send our thoughts of strength and hope to all affected during this difficult time.

In light of these events, below is a list of employment law considerations that may apply during this time of uncertainty.

Workplace safety and health

The California Division of Occupational Safety and Health’s (Cal/OSHA) Protection from Wildfire Smoke regulation requires employers to monitor the Air Quality Index (AQI) for levels of particulate matter, called PM 2.5, that exceed 150.

If PM 2.5 exceeds 150, employers must immediately act to reduce worker exposure to wildfire smoke by relocating workers either to an enclosed building with mechanical filtration or another outdoor location where the AQI for PM 2.5 is lower than 150, if feasible. Employers must also offer N95 masks for voluntary use whenever AQI for PM 2.5 is between 150-500. 

The AQI may be monitored on the AirNow website.

Note that this regulation applies to employees who work both indoors and outdoors if the outdoor work exceeds one cumulative hour during the work shift. It also applies to indoor locations that may have doors or windows that are regularly open, such as retail establishments. 

Additionally, in the event of an emergency condition, employers may not take or threaten adverse action against an employee for refusing to report to, or for leaving, a workplace because the employee has a reasonable belief that the workplace is unsafe.

Similarly, in an emergency condition, employers may not prevent employees from accessing their mobile device or other communications device to get emergency assistance, assess a situation’s safety or communicate with someone to verify their safety. 

Pay during wildfires

Nonexempt employees

Employers must continue to track and compensate nonexempt employees for all hours worked.  However, businesses may have to close or alter their hours of operation due to the wildfires, which may impact pay.

• Timekeeping record unavailability: If an employer’s timekeeping records were lost or are now unusable or unavailable, employees’ hours must be retabulated to ensure timely compensation. Employers should work with their nonexempt employees to confirm their hours worked. 
• Reporting time pay: California requires employers to pay additional wages at the nonexempt employee’s regular rate of pay if the employee reports to work but does not work at least half of their scheduled shift. This obligation is only excused where work interruptions were the result of an “Act of God” or events out of the employer’s control, which includes wildfires.
• Split shift premiums: If an employer sends nonexempt employees home early and asks them to return later within the same workday, the employee will be entitled to a split shift premium, which is one hour of pay at the state or local minimum wage, whichever is greater. 
• On-call and standby pay: If a nonexempt employee is placed on an on-call or standby status and is under the control of an employer, they must be compensated for that time.

In the event a business must be closed due to the wildfires, nonexempt employees do not need to be paid for their remaining scheduled shifts. 

Exempt employees

Exempt employees will be entitled to their full weekly salary if they work any part of the workweek, even if the business facilities are closed or employees must stay home or evacuate.

Time off, leaves of absence and other accommodation considerations

Paid sick leave

Employees may use Paid Sick Leave if they are ill or need to care for an ill family member or loved one. This includes diagnosis, care or treatment for an existing health condition or preventative care for the employee or a qualifying family member. 

Paid time off or vacation time

If an employee needs time off for reasons unrelated to an injury or illness, the employee may use any accrued paid time off or vacation time. 

Family and Medical Leave and California Family Rights Act

Employees may also be eligible for up to 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA) for the serious health condition of the employee or a loved one. 

School-related leave

If an employee needs time off because their child’s school or licensed daycare has unexpectedly closed as a result of the wildfires, they may be eligible for time off under California’s school activities leave. Employees who work at a location with 25 or more employees may take up to 40 hours of leave a year to either appear at a child’s school or daycare activities or in the event of an emergency, which includes closures or unexpected unavailability of the school or day care. This leave is unpaid.

Volunteer civil service leave

Employees who serve as volunteer firefighters, reserve peace officers or emergency rescue personnel must be provided leaves of absence for their duties. Rescue personnel are defined as any person who is an officer, employee or member of a fire department, fire protection or firefighting agency of the federal government, California state government, local government, special district or other public or municipal corporation or political subdivision of California or an officer of a sheriff's department, police department or private fire department. 

This leave is unpaid, employees taking leave to participate in these emergency services must be reinstated to their prior position following their service, where feasible. 

Accommodation requests

If the wildfires impact an employee’s health, mobility or mental well-being (e.g. PTSD), the employee may qualify for accommodations under the Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA). Employers should engage in the same interactive process as it would under other circumstances to handle accommodation requests and explore reasonable accommodations for the employee, including remote work or leaves of absence.

Reduction in force issues

Any employers who are forced to reduce staff or temporarily shut down due to the wildfires should be cognizant of their obligations under the California Worker Adjustment and Retraining Notification (Cal-WARN) Act. While Cal-Warn generally requires 60-days’ notice of mass layoffs or closures, the law excuses employers in cases of physical calamity, such as a wildfire. Employers must still work to communicate transparently with employees and document all efforts to comply with their legal requirements. 

Wage theft notice issues

In California, employers must provide a wage theft notice to new nonexempt employees that includes information about wildfire emergencies. This notice is required by Labor Code Section 2810.5. The California Department of Industrial Relations (DIR) recently published a revised employee wage theft notice, effective January 1, 2024, that reflects legislation enacted in California in October 2023 requiring notice of emergency or disaster declarations and expanding the state’s paid sick leave mandate.

On January 8, 2025, President Biden approved a “Major Disaster Declaration” for California to supplement recovery efforts in the areas affected by wildfires and straight-line winds from January 7, 2025, and continuing.

What's included in the notice?

• Information about any state or federal emergency or disaster declaration that may impact the employee's health and safety
• Information about the wildfire emergency proclamation if it could impact the employee's workplace health and safety

Who must receive the notice?

• Nonexempt employees hired within 30 days of January 7, 2025

Where is the notice included?

• In the employee's new hire paperwork

What should employers do during wildfires?

• Maintain regular payment schedules
• Consider remote work arrangements
• Provide leave under the CFRA or the federal FMLA
• Consider accommodation requests under the ADA or California's FEHA

Please do not hesitate to reach out to our team if you have any questions or require assistance.