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Responding to Fires, Power Outages and Poor Air Quality

Posted by: Gail Cecchettini Whaley, J.D. on Thursday, October 31, 2019 at 12:00:00 am

Is this the "new normal?" Fall in the Golden State has always brought high winds and high fire danger, but the situation has worsened in recent years. Once again, California is facing fast-burning wildfires that are destroying homes and communities. But now, power outages are hitting hundreds of thousands of customers in California and having a severe impact on individuals and businesses. At CEA, we get lots of questions about how to handle issues relating to the ongoing wildfire threats. Here are some answers:

How Do We Pay Employees during Power Outages or Closures?

If a work shut-down is due to 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 the non-exempt employees for hours actually worked. Reporting time pay is not owed to non-exempt employees when public utilities fail or when "Acts of God" close your business.

You are free to pay non-exempt employees for that time, 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 (for more details review our fact sheet). If the business is closed for the entire week, employers don't need to pay exempt employees.

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

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 own benefit—must be compensated for that on-call or waiting time. When you "restrict" an employee's time, they are eligible for compensation.

Can Employees Work from Home?

Fires, 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.

What About Time Off for Health Issues Related to Fires?

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 50 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.

If you have fewer than 50 employees, 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.

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. For example, a construction worker with asthma may be unable to work due to wildfire smoke in the area. Should an employee suffer a physical or mental injury because of a natural disaster, they may be entitled to protections under these laws.

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

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 closed due to a natural disaster, such as a fire, earthquake or flood. For emergency situations, the time must not exceed 40 hours per year. Employees can use vacation or PTO to receive pay for this otherwise unpaid time.

What Do I Need to Know About the Effect of Smoke on My Employees?

Cal/OSHA has issued several warnings about the hazards wildfire smoke and wildfire cleanup can pose to employees.

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

Smoke from wildfires contains chemicals, gases and fine particles that can harm health. The greatest hazard comes from breathing fine particles in the air (called PM2.5), which can reduce lung function, worsen asthma and other existing heart and lung conditions, and cause coughing, wheezing and difficulty breathing.

California's new protection from wildfire smoke standard applies to workplaces where the Air Quality Index (AQI) for fine particles in the air is 151 or greater and where workers may be exposed to wildfire smoke.

When wildfire smoke affects a worksite, employers must monitor the AQI for particulate matter in the air, known as PM2.5.

Practical Ways to Help Employees Get Back on Track

  • Continue to process payroll in a timely manner.
  • Allow affected employees to work from home if possible. Clearly communicate to all employees exactly who is and is not permitted to work from home, whether overtime is permitted, and how to record time worked outside of the company's premises.
  • Be sensitive to the fact that not all employees will be able to work remotely, and therefore should consider alternative arrangements like temporary or shared offices.
  • Allow employees to donate their Paid Time Off or Vacation time to fellow employees. While the initial disaster itself may have passed, employees may need time off to resolve matters with insurance, doctors, etc. The financial burden an employee may experience due to a disaster can be alleviated by this type of option. For an example of a PTO/Vacation Donation Program and Donation Form, please contact one of our HR Directors for assistance at ceainfo@employers.org or 800.399.5331.
  • Contact your benefits provider and/or Employee Assistance Program to determine what other resources are available to your employees.

CEA was founded in 1937 to serve business in California and we are here to help during these difficult times. Please call CEA if we can help answer your employee-related questions.

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