Wildfires Bring Back Facemasks

Wildfires Bring Back Facemasks

In California, we have become accustomed to high winds and fire danger in the Fall. This year, our so-called "fire season" has started earlier and with great force, especially in Southern California. With four major fires currently raging in our state, some Californians are dusting off their facemasks and using them outdoors to protect themselves from the poor air quality.

Poor air quality, evacuation orders, and power outages are hitting thousands of people in California and are having a severe impact on individuals and businesses. At CEA, we get many questions about how to handle issues relating to ongoing wildfire threats. Here are some answers:

Q: What is my Responsibility When There is Poor Air Quality due to Wildfires?

A: Whether poor air quality is due to wildfires or other pollution, employers should be regularly checking the air quality index and obtaining the AQI number by going to a trusted website such as www.airnow.gov.

Indoor Workplaces: According to Cal/OSHA, wildfire smoke can be carried by wind and become a hazard for employees working in indoor workplaces, even those located many miles from evacuation zones. Employers must ensure ventilation systems are properly maintained and functioning, and provide the proper indoor ventilationrequired by Cal/OSHA.

Outdoor Workplaces: With certain exceptions, Cal/OSHA also requires employers to take measures to protect outdoor workers when the current AQI is 151 or greater. Visit Cal/OSHAfor specific requirements.

Q: How Do We Pay Employees During Mandatory Evacuations, Power Outages or Closures?

A: If a work shut-down is due to evacuation, power outages or fire there are several factors to keep in mind.

Non-exempt employees are only paid for hours actually worked. If your business shuts down because public utilities (electricity, water, gas, sewer) fail or because of a fire, you are not required to pay non-exempt employees. Likewise, if employees are at work and then sent home due to a power outage or fire, you only have to pay non-exempt employees for hours actually worked. Reporting time payis not owed to non-exempt employees when public utilities fail or when "Acts of God" such as evacuations close your business.

However, you are free to pay non-exempt employees for that time (apply that policy consistently), and may also permit them to use their paid sick leave time or vacation time. Decide how you plan to handle this issue and communicate it to employees.

The rules are different for exempt salaried employees. Employers must pay exempt employees a full weekly salary for any week in which any work is performed, with a few limited exceptions. If the business is closed for the entire workweek, employers don't need to pay exempt employees so long as they aren't performing any work!

Q: What If I Want My Employee to Stay On-Site to Wait Out The Power Outage?

A: In most cases, any employee who is required to remain at the employer's premises or close by-and therefore unable to use that time for his or her benefit-must be compensated for that on-call or waiting time. When you "restrict" an employee's time, they are eligible for compensation.

Also, be aware that employees have a right to refuse to report to work (or leave work) during an "emergency condition." An Emergency Condition is defined as either:

• Conditions of disaster or extreme peril to the safety of persons or property caused by natural forces or a criminal act; or
• An order to evacuate a workplace, worksite, worker's home, or the school of a worker's child due to a natural disaster or a criminal act

Q: Can Employees Work from Home?

A: Fires, evacuations, road closures, or other delays can result in an employee being stranded on the road or at home. Maybe the employee has power at home or a friend's house, but not at work. Decide in advance whether you will allow remote work in such situations. Remember, any employee who performs work for the business, such as taking phone calls or answering emails, must be compensated for that time even if done away from the office.

Q: What Can I Do to Help?

A: Be considerate for those experiencing evacuation orders or displacement and have community outreach numbers available or your Company's Employee Assistance Plan (EAP) available for assistance. Be flexible and accommodating for reasonable requests for work accommodations in light of stressful situations your employee may be facing, such as power outages, school closures, property damage, etc.

Q: What About Time Off for Health Issues Related to Fires?

A: Employees may be entitled to time off to deal with health issues relating to fires.

• For instance, California's mandatory paid sick leave days can be used for the care or treatment of a health condition for themselves or a family member, as defined by the Healthy Families, Healthy Workplaces Act.
• If you have 5 or more employees, eligible employees may elect to take leave under the California Family Rights Act (CFRA) for a serious health condition caused by a disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse, or parent with a serious health condition may also be entitled to leave.
• Another option for leave for employers with five or more employees falls under California's Fair Employment and Housing Act (FEHA). An employee who is physically or emotionally injured, as the result of a disaster, may be entitled to leave as a reasonable accommodation, so long as it would not place undue hardship on the operation of the employer's business.
• Personal Leave-Don't forget that many employers offer personal leaves of absence to their employees and/or allow the use of vacation or PTO. This would be a good time to review your policies and ensure they are adaptable to the needs of your employees and your business.

Q: Business is Open but Local Schools Are Closed. Do Employees Get Time Off?

A: Employers with 25 or more employees working at the same location may need to provide unpaid time off to employees whose children's school or childcare is closed due to a natural disaster, such as a fire, earthquake, or flood. For emergencies, the time must not exceed 40 hours per year. Employees can use vacation or PTO to receive pay for this otherwise unpaid time.

CEA recommends that employers review Cal/OSHA's excellent resources on Workers Safety and Health in Wildfire Regions.