Employee Pay, Smoke Protection
By August 19, more than 360 wildfires were simultaneously raging across California, destroying property and prompting evacuation of hundreds of thousands of residents. On August 18, Newsom declared a statewide emergency due to the wildfires that had worsened due to both the current heat wave and continuous high winds.
“We are deploying every resource available to keep communities safe as California battles fires across the state during these extreme conditions,” said Governor Gavin Newsom in a press release.
In addition to the massive devastation wildfires cause, employers need to consider those employees who are impacted, as well as the threat of smoke exposure—especially for individuals working outdoors.
Cities and counties not under immediate wildfire threat may still have to deal with wildfire smoke’s harmful effects. The California Division of Occupational Safety and Health (Cal/OSHA) emergency regulation, which was extended through January 20, 2021, requires that certain employers take quick action when wildfires are burning, including monitoring the Air Quality Index (AQI) at their worksites for fine particulate matter (PM 2.5) and, depending on the reading, reducing employees’ exposure, or providing respirators, such as N95s, and requiring their use. Employers should continue to monitor AQI levels in their area closely as they are rising above Cal/OSHA’s threshold level (higher than 150) in multiple parts of the state.
As employers are well aware, the COVID-19 pandemic has created a mass shortage of N95 respirators, and those available are prioritized for healthcare purposes. Cal/OSHA acknowledged the problem in a statement issued on August 20, 2020 and has since issued an update and list of available acceptable alternatives to traditionally compliant respirators such as N-95 masks. As employers await masks, they must still act to protect outdoor workers in compliance with the wildfire smoke regulation, which may mean moving operations indoors or providing respirators, but, in the event those options are not available, employers may need to temporarily shutdown operations.
Employers also must be mindful of properly paying employees during emergencies.
Exempt employees must be paid a full weekly salary for any week in which any work is performed, but no pay is owed if the business is closed for the entire week.
For nonexempt employees, special pay rules apply in emergency situations. You must pay nonexempt employees only for the hours they worked if your business closes for any of the following reasons:
- Operations can neither start nor continue due to threats to you or property, or when recommended by civil authority;
- Public utilities such as water, gas, electricity or sewer fail; or
- Work is interrupted by an “act of God” or other causes outside of your control.
If, however, you choose to close your business and it’s not for one of the above reasons, you may owe reporting time pay. This means you would owe a nonexempt employee who shows up for work as scheduled—and is either not put to work or is given less than half of their scheduled hours—pay for one-half of the scheduled shift, but no less than two hours and no more than four hours.
Employers also may choose to provide some paid time off during emergencies, or to let employees use vacation or other personal time. If offering these options, remember to be consistent!