On September 29, 2022, Governor Gavin Newsom signed into law SB 1044, a bill which prohibits retaliation against employees for refusal to report to work during an “emergency condition” if that employee has a “reasonable belief that the workplace or worksite is unsafe.”
Under the bill, an “emergency condition” is defined as any condition of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or criminal acts. The bill also defines an “emergency condition” as 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 takes care to specify that an emergency condition does not include a health pandemic. SB 1044 also makes clear that the bill is not intended to be applicable when the emergency condition posing an imminent and ongoing risk of harm has ceased to exist.
Regarding an employee's “reasonable belief that the workplace or worksite is unsafe,” SB 1044 measures this belief through a reasonable person test which asks whether a reasonable person would think that there was a real danger of death or serious injury if that person were to enter or remain on the premises.
In addition to SB 1044's general prohibition on retaliation, the bill also prohibits employers from preventing private or public sectors employees from accessing their mobile or other communication devices to seek emergency assistance, assess situation safety, or otherwise communicate with another person to confirm their safety.
SB 1044 also mandates that employees notify their employers of the emergency condition requiring the employee to take leave or refuse to report to the workplace or worksite. Lastly, SB 1044 provides employers the right to resolve any alleged violation before a PAGA lawsuit may be brought in court.
It is important to note that SB 1044 does not apply a variety of workers including: first responders, disaster service workers, employees required by law to provide aid or remain on the premises, healthcare workers and contractors, 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.
Critics of SB 1044 have argued that the bill actually puts public safety at an increased risk by allowing workers to skip shifts without asking for prior permission. Critics have also taken issue with the fact that SB 1044 subjects employers to both individual and PAGA lawsuits for disciplining employees who fail to report to work. These critics also have also raised concerns over the fact that the bill does not require workers to consider the safety of other workers in the worksite.
SB 1044 will officially take effect on January 1, 2023. As SB 1044 adds more complexity to California's already expansive Labor Code and thus opens employers to more liability, employers should consult with competent counsel to set up workplace practices and standards to ensure compliance with this new law.