SB 1044 – Enacts Employee Protections Relating To Workplace Emergency Conditions

Senate Bill 1044 adds a new chapter to the Labor Code entitled Workers’ Rights in Emergencies.  SB 1044 prevents employers from taking or threatening adverse action against any employee because the employee refused to report to or left a workplace or worksite within an area affected by an emergency condition because the employee has a reasonable belief that the workplace or worksite is unsafe.  When feasible, employees must report the emergency condition to their employer prior to leaving or refusing to report for work.  When prior notice is not feasible, employees are required to notify their employer of the emergency condition as soon as possible afterward.

The bill defines an “emergency condition” as the existence of either “conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act” or “an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.”  However, it specifically provides that an “emergency condition” does not include a health pandemic.  “A reasonable belief that the workplace or worksite is unsafe” means that a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises.

Certain categories of employees are excluded from the right to leave or refuse to report to work, including the following:

• First responders.
• Disaster service workers, as defined by Section 3101 of the Government Code.
• Employees are required by law to render aid or remain on the premises in case of an emergency.
• Transportation employees participating directly in emergency evacuations during an active evacuation.
• Employees whose primary duties include assisting members of the public to evacuate in case of an emergency.
• Employees of health care facilities who provide direct patient care or services supporting patient care operations, or who are otherwise required by law or policy to participate in emergency response or evacuation.

Notably, for public agencies, Section 3101 defines “disaster service workers” as including all public employees. As such, the bill does not give public employees a right to leave work or refuse to report for work in an emergency condition; however, the public employee would still have a right under Labor Code 6311 to refuse to perform work that is unreasonably hazardous under Cal/OSHA standards.

Separately, SB 1044 prohibits employers from preventing 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 during an emergency condition. The bill specifically states that this prohibition applies equally to public agencies.

SB 1044 does not apply when emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worksite, the worker, or the worker’s home have ceased.

(SB 1044 adds Section 1139 to the Labor Code.)