Gov. Newsom Signs SB 1044 on Emergency Working Conditions

On September 29, 2022, Governor Gavin Newsom signed into law Senate Bill 1044, by Senator Maria Elena Durazo (D-Los Angeles). SB 1044 Labor Code Chapter 11 relating to emergency working conditions.

Existing California law provides numerous provisions relating to wages paid, hours worked, and working condition in places of employment. SB 1044 prohibits an employer, in the event of an emergency condition, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe.

In addition, SB 1044 prohibits an employer from preventing any private or public sector 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 confirm their safety.

SB 1044 also requires an employee to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite.

Section 1 of the bill adds Chapter 11 (commencing with Section 1139) to Part 3 of Division 2 of the Labor Code. Chapter 11 is titled: Workers’ Rights in Emergencies.

New Section 1139(a) defines the following terms: “emergency condition” (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); and, “a reasonable belief that the workplace or worksite is unsafe” (reasonable person test that there is a real danger of death or serious injury if that person enters or remains on the premises):

In addition, the existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations is a relevant factor if this information is known to the employee at the time of the emergency condition or the employee received training on the health and safety regulations mandated by law specific to the emergency condition.

New Section 1139(b) prohibits an employer from:

• Taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe.

• • Note that this provision does not apply to first responders; disaster service workers; employees required by law to render aid or remain on the premises in case of an emergency; health care facility employees or contractors; private contractors who provide or aid in emergency services; employees working on a military base or in the defense industrial base sector; employees performing essential work on nuclear reactors or nuclear materials or waste; employees in utility, communications, energy, or roadside assistance providing aid; employees of a licensed residential care facility; employees of a depository institution; transportation employees involved in emergency evacuations; and, employees of private fire prevention contractors.

• 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.

• • Note that this provision applies to private and public sector employees, but does not apply to employees of a depository institution or a correctional facility, or to agricultural equipment operators.

New Section 1139(c) requires an employee to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite prior to leaving or refusing to report.

New Section 1139(d) specifies that these new laws are not intended to 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.

New Section 1139(e) provides that an employer has a right to cure any alleged violation before a PAGA lawsuit may be brought in court.