What Employers Need to Know About Wildfires

As fire season starts and some areas of California and several other states are attempting to contain wildfires, employers need to consider their obligations to employees. In some circumstances, employers must implement a variety of controls to protect employees from wildfire smoke, including engineering and administrative controls, or require the use of personal protective equipment (PPE). Employers may also have employees' leaves of absence and wage compliance issues to consider.

Worker Safety

The federal Occupational Safety and Health Administration (OSHA) does not have a wildfire standard but does require that employers protect employees from anticipated hazards associated with wildfires that employees are likely to come in contact with as part of their general duty obligations. Federal OSHA has also issued guidance indicating that employers with operations at risk of exposure to wildfires should be prepared for wildfire exposures through the development of preparedness and evacuation plans, establishment of safety zones around buildings, and availability of emergency response equipment.

In California, Cal/OSHA regulations require that employers take steps to protect their workers from potential exposures to wildfire smoke, which can present a hazard by employees breathing in harmful chemicals, gases or fine particles that have the potential to harm their respiratory systems. Steps to protect workers can include moving operations indoors, providing respiratory protection, or ceasing operations until outdoor air quality is improved.

When employers in California have a reasonable expectation that employees could be exposed to wildfire smoke at a worksite, employers must monitor the air quality index (AQI) and determine employees' potential exposure to particulate matter. Employers can also obtain information on AQI and potential particulate matter exposures directly from EPA, California Air Resources Board, or their local air pollution control and air quality management districts.

Under Cal OSHA regulations, employers also have certain obligations if the AQI reaches certain parameters including:

• Informing employees of wildfire smoke hazards, the current air quality, and protective measures available.
• Providing effective training and instruction to employees on the AQI, resources for monitoring air quality conditions, potential sources of exposure to particulate matter, and the employer's engineering (i.e., feasible operational modifications) and administrative controls (e.g., schedule changes) to protect employees from potentially harmful wildfire smoke exposures.
• Modifying the workplace where feasible to reduce potential exposure.
• Providing appropriate respiratory protection equipment, when needed, such as disposable filtering facepiece respirators or dust masks.

Leaves

In addition to the immediate safety at the worksite, a disaster like a wildfire may mean employees require time off of work. Under the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA), an employee may be eligible for leave if the employee or a family member develops a serious health condition due to the wildfires. If the employee has paid sick leave time available, they could first take paid leave before taking unpaid leave under FMLA or CFRA.

If an employee is a volunteer firefighter, reserve police officer, or emergency rescue person, they may be eligible to take a leave of absence to perform emergency duties.

Wage Compliance

If a business has to close due to wildfires, the business needs to be prepared to handle payroll issues such as missing timesheets. If incorrect paychecks go out, employers should attempt to correct issues as soon as possible to avoid potential penalties should an employee make a claim. Moreover, exempt employees generally must receive their full salary, if there is a forced closure of less than a full workweek.

Leonora M. Schloss and Peter M. Waneis are attorneys with Jackson Lewis in Los Angeles. Cressinda D. Schlag is an attorney with Jackson Lewis in Austin, Texas. © 2020 Jackson Lewis. All rights reserved. Reposted with permission.