New Law Says Employees Can Refuse to Come to Work When Emergency Conditions Exist in the Workplace

On September 29, 2022, Governor Newsom signed Senate Bill 1044 which grants new protections and rights to most California employees in the case of emergency conditions in the workplace.

Summary. The new law provides that, in the event of an emergency condition, an employer may not take or threaten any adverse action against an employee who refuses to report to, or leaves, a workplace or worksite because the employee has a reasonable belief that the workplace or worksite is unsafe. The law also prohibits an employer from preventing an 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.  

Emergency condition” is defined as the existence of either of the following:

  • 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.
  • 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.

The law makes clear that a health pandemic is not included in the definition of “emergency condition.”

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. The law also says that the existence of any health and safety regulations specific to the emergency condition, and an employer’s compliance or noncompliance with those regulations, shall be 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.

Notice to employer. When feasible, employees are required to notify their employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite. Also, once the emergency condition has ceased, the employee has no further protections under the new law and thus can be expected to report to work as assigned.

Exceptions. Employees in certain industries and professions are not covered by the new law.  For example, first responders; employees who provide direct patient care at health care facility; employees who work at a licensed residential care facility; employees performing disaster services; employees required by law to render aid in the case of an emergency; and transportation employees directly providing emergency evacuation services during an active evacuation.

Takeaway.  One emergency condition that is unfortunately all too familiar to those of us living in California, is fire during what we’ve come to know as “fire season.” Even before the passage of SB 1044, employers with operations in an area impacted by a fire were very likely already releasing their employees from work if it was unsafe for them to be on the premises. However, there may times where the employer and employee disagree as to whether there is a real danger of death or serious injury caused by a fire or other emergency condition if that person enters or remains at the worksite. SB 1044 seems to indicate that as long as the employee has a “reasonable belief” that there is such a danger, then they may refuse to report to, or leave, work regardless of the employer’s belief that the workplace is safe.