On September 29, 2022, Governor Gavin Newsom signed Senate Bill (SB) 1044, which prohibits employers from retaliating against an employee for refusing to report to work or leaving work under certain emergency circumstances. SB 1044 takes affect January 1, 2023.

Existing Law
The Department of Industrial Relations established the Division of Labor Standards Enforcement (the “Division”) under the direction of the Labor Commissioner. The Division is authorized to enforce the Labor Code and all labor laws that prescribes comprehensive requirements relating to minimum wage, overtime compensation, and standards for working conditions for the protection of employees.

New Law
SB 1044 does not replace or eliminate any existing provisions under the Labor Code or labor laws. Rather, SB 1044 expands existing labor law to provide more protection for employees during certain emergency situations.

Prohibition of Retaliation in the Event of an Emergency Condition
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 for leaving a workplace or worksite within the affected area because the employee has a reasonable belief that the workplace or worksite is unsafe. Additionally, an employer is prohibited from preventing an employee from accessing their cell phone (or other communication device) for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety.

Emergency Condition: Under SB 1044, an emergency condition refers to the existence of one of the following:

1. 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
2. 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.

SB 1044 does not include a health pandemic as an emergency condition.

Reasonable Belief: “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.

Relevant factors that will be considered when evaluating whether an employee had a reasonable belief are:

1. Whether there were any health and safety regulations specific to the emergency condition;
2. Whether an employer was compliant or noncompliant with those regulations;
3. Whether information about the health and safety regulation and the employer’s compliance or noncompliance was known to the employee at the time of the emergency condition; and
4. Whether the employee received training on the health and safety regulations mandated by law specific to the emergency condition.

When Does SB 1044 Apply?
SB 1044 is intended to apply when an emergency condition poses an imminent and ongoing risk of harm to the workplace, the worksite, the worker, or the worker’s home. The provisions under SB 1044 no longer applies when the specified risk of harm has ceased. Once the specified harm has ceased, an employee is required to notify their employer of the emergency condition that required the employee to leave or refuse to report to a workplace or worksite.

Employees Not Covered by SB 1044
SB 1044 applies to all employees, except the following:

1. A first responder
2. A disaster service worker
3. An employee required by law to render aid or remain on the premises in case of an emergency.
4. An employee or contractor of a health care facility who provides direct patient care, provides services supporting patient care operations during an emergency, or is required by law or policy to participate in emergency response or evacuation.
5. An employee of a private entity that contracts with the state or any city, county, or political subdivision of the state, including a special district, for purposes of providing or aiding in emergency services.
6. An employee working on a military base or in the defense industrial base sector.
7. An employee performing essential work on nuclear reactors or nuclear materials or waste.
8. An employee of a company providing utility, communications, energy, or roadside assistance while the employee is actively engaged in or is being called upon to aid in emergency response, including maintaining public access to services such as energy and water during the emergency.
9. An employee of a licensed residential care facility.
10. An employee of a depository institution, as defined in Section 1420 of the Financial Code.
11. A transportation employee participating directly in emergency evacuations during an active evacuation.
12. An employee of a privately contracted private fire prevention resource.
13.  An employee whose primary duties include assisting members of the public to evacuate in case of an emergency.

Failure to Comply
If an employer violates the provisions under SB 1044, employees are permitted to bring an action against their employer pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA).

We recommend you review your employee handbook and workplace policies to ensure compliance with SB 1044 as soon as possible. If you have any questions about emergency condition prohibitions, contact McKague Rosasco LLP.