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California Wildfires Are Heating Up Employer Concerns

As employers continue to address the COVID-19 pandemic, they now face a new set of workforce challenges related to extreme weather and wildfires. Both are creating a challenging remote work environment due to: (1) recent evacuations; and (2) heat exposure risks linked to employees now forced to work in their homes with closed windows (and lack of proper air ventilation). Employers should consider preparing themselves for a further reduced workforce caused by such complications.

The CDC has cautioned that wildfire smoke can irritate a person’s lungs, cause inflammation, affect the immune system, and make a person more vulnerable to the effects of COVID-19.1  According to the CDC, those who may be most at-risk of fire-related complications include people who currently have or are recovering from COVID-19, children under the age of 18, adults age 65 or older, pregnant women, people with chronic health conditions, such as heart or lung disease, asthma, and diabetes, outdoor workers, people who are immunocompromised or taking drugs that suppress the immune system, and people who have a lower socioeconomic status, including those who have limited access to medical care. As a result, employers should be mindful that a growing number of workers may be taking time off work or making other accommodation requests related to their own health or the health of a family member. Even where an employee provides limited information, employers should evaluate whether the request for time off work may be protected under the ADA/FEHA, the Family and Medical Leave Act, the California Family Rights Act, or some other applicable state and local paid sick and leave laws.

Employers should be aware that outdoor workers are at increased health risk and require additional protections. The wildfires have caused serious issues with air quality and local public health authority and CDC guidelines are recommending that individuals avoid unnecessary outdoor exposure and exertion. Last year, Cal/OSHA enacted an emergency regulation to protect outdoor workers from wildfire smoke exposure.2 This regulation requires employers to take steps to reduce employee exposure to poor air quality, whenever feasible, including by putting administrative and engineering controls in place, such as providing enclosed buildings/structures, relocating work locations, changing work schedules, reducing work intensity, providing additional rest periods, and providing appropriate respiratory protective equipment.

Wildfires may also make it more difficult for employers to identify whether their workers’ “symptoms” are  related to COVID-19 versus smoke inhalation from the wildfires. As noted by the CDC, some symptoms, like dry cough, sore throat, and difficulty breathing, can be caused by both wildfire smoke exposure and COVID-19. In contrast, symptoms like fever or chills, muscle or body aches, and diarrhea are typically not related to smoke exposure, according to the CDC. Therefore, employers should consider training and educating their workforce on the similarities and, more importantly, differences between these two conditions. Employers may consider asking the employee to seek medical advice if there is any question as to which category the symptom falls under so the employer may continue to exclude COVID-19-related hazards from the workplace.

Finally, employers should be aware that California grants additional unpaid leave and protections for employees who serve as volunteer emergency responders (volunteer firefighter, reserve peace officer, or emergency rescue personnel) and need to take time off to perform emergency duties. . The law does not require an employee to provide advance notice of the need for leave, except in the case of a healthcare worker, who must notify his/her employer at the time the employee becomes designated as an emergency rescue worker and when the employee is notified that he or she will be called to action. Employers may not discharge or otherwise discriminate against any employee who takes time off for this reason. Employers that violate this law may be guilty of a misdemeanor, so employers should carefully evaluate whether a time off request is related to volunteer first responder obligations and determine leave and reinstatement rights.3 Employers may also wish to consider whether their attendance policies penalize employees for taking protected time off.

As the challenges facing California employers in 2020 continue to mount, it is increasingly important for employers to have the appropriate tools in place to monitor developments and create strategies for responding appropriately.


1 Centers for Disease Control and Prevention, Wildfire Smoke and COVID-19https://www.cdc.gov/disasters/covid-19/wildfire_smoke_covid-19.html (last visited August 25, 2020).

See Cal. Code Regs., title 8, § 5141.1.

See Cal. Lab. Code § 230.3.

 

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 245
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About this Author

Charles O. Thompson Employment Attorney with Greenberg Traurig, San Francisco, California
Shareholder

Charles Thompson focuses his practice on employment litigation and counseling representing clients through all phases of Class Actions and Single Plaintiff cases. Charles has wide-ranging experience litigating employment-related issues for public and private companies, having handled over 1,000 employment matters for clients ranging from Fortune 500 companies to Silicon Valley startups. He has tried employment, commercial, and professional liability cases to verdict and directed verdict, and has litigated and appealed cases from California State Courts to the...

415-655-1316
Vanessa C. Krumbein Labor & Employment Greenberg Traurig Los Angeles, CA
Associate

Vanessa C. Krumbein focuses her practice on counseling employers, in-house counsel, and human resource professionals on a wide range of workplace issues, including employee performance and discipline, employment agreements, compliance with wage and hour laws, managing disability accommodation and leaves of absence, employee classification, and workplace harassment investigations, and she works with companies to develop employee handbooks and appropriate personnel policies and procedures. Vanessa also has experience working on employment issues unique to clients in the media and...

310.586.7727
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