In light of various emergencies and disasters throughout the state, the California Chamber of Commerce is educating employers about a few things they should know about paying employees, leaves of absences and planning ahead in emergencies.
Even in an emergency, employers must be mindful of obligations under state employment laws and consider pay issues for exempt and nonexempt employees related to office closures.
Employers must pay exempt employees a full weekly salary for any week in which any work is performed. If the business is closed for the whole week, however, employers don’t need to pay exempt employees.
In emergencies, special pay rules apply for nonexempt employees.
If your business shuts down for any of the following reasons, you must only pay nonexempt employees for the hours they worked prior to being sent home:
Of course, employers are always free to pay employees or let them use vacation or other personal time. Many employers may choose to provide some paid time during emergency situations. Just remember to be consistent!
Leaves of Absence for Emergency Personnel
Some of your employees may serve as volunteers for local fire departments or other emergency response entities. All employers must provide leaves of absence for employees who are required to perform emergency duty. Employers are not required to compensate the employee during this time off.
Leave for Health Issues
Employees may be entitled to time off to deal with health issues that occur as a result of the disaster.
For instance, employees may use their California mandatory paid sick leave for the care or treatment of a health condition for themselves or a family member, as defined by the law.
They also may be eligible for time off for family or medical leave for themselves or to care for family members with any serious health conditions under the federal Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA). The FMLA and the CFRA cover employers with 50 or more employees and provide a maximum of 12 weeks of unpaid leave in a 12-month period.
Employers may have obligations to reasonably accommodate an employee under the federal Americans with Disabilities Act (ADA) and the state Fair Employment and Housing Act (FEHA). Should an employee suffer a physical or mental injury because of a natural disaster, they may be entitled to protections under these laws.
School or Childcare Leave
Employers with 25 or more employees working at the same location may need to provide unpaid time off to employees whose children’s school or child care is closed due to a natural disaster, such as a fire, earthquake or flood. For emergency situations, the time must not exceed 40 hours per year.
Employers must remember their obligations to provide a safe workplace. Cal/OSHA is advising employers to take special precautions to protect workers from hazards from wildfire smoke.
Cal/OSHA has posted materials that provide guidance for employers and workers on working safely in conditions with heavy smoke caused by the wildfires.
The single, most important thing employers can do is create an Emergency Action Plan (EAP) and communicate that plan to employees. Employers should inform employees that the plan exists and what steps the plan outlines. As an employer, you have an obligation to create and maintain a safe workplace for your employees.
All California employers are required to have an EAP designating the actions that must be taken to protect employees from fire and other emergencies. California employers must also have a Fire Prevention Plan (FPP) that details the fire hazards your employees may face and how to handle a fire should the situation arise.
When employees are initially assigned to a job or transferred to a new position, the employer should review parts of the EAP and FPP employees must know so they can protect themselves in the event of an emergency. Employers should retrain employees if they change the EAP or FPP and should periodically conduct emergency training and drills.
When considering emergency situations, employers should plan how they will handle and communicate office closings and determine who will make the final decision on whether to close. Determine also if alternative workplaces are available, whether certain employees can work from home or whether to shut down all work during the emergency.
I hope you can enjoy the holidays and the remainder of 2017. Savor the peace and quiet while you can, because 2018 promises to be a very noisy year.
We will start off the year with what likely will be a special election for Oxnard voters to decide if they want to recall the mayor and three councilmembers. Assuming the Ventura County Elections Division deems enough valid signatures were collected to trigger a special election, there will be four incumbents running campaigns to keep their jobs. There will also be a number of hopeful candidates vying to replace them. I have visions of the beautiful city of Oxnard being covered with campaign signs!
Almost simultaneously there will be campaigns leading up to the June primary election. (State legislation was passed in 2017 to move the primary election to March, but that doesn’t take effect until 2019.) More campaign signs! Fortunately, Oxnard will not be dealing with a supervisorial election in 2018, but the east portion of the County certainly will.
We can look forward to our summer and fall being filled with campaign rhetoric, promises, mud-slinging, and – yes – signs!
When Allan Zaremberg, President and CEO of the California Chamber of Commerce, was in Oxnard on December 1, he had some interesting observations about the state and federal elections in 2018. Since Jerry Brown is termed out, there will be a lot of interest in the governor’s race. But where that interest comes from could impact federal House and Senate races.
Since California adopted the top-two primary, our ballots have contained many more names of Democrats. It’s no surprise since California is a blue state. Mr. Zaremberg explained that if there are multiple Republicans in the governor’s race going into the primary, it is likely that they will split the party vote and two Democrats will be on the November ballot. If that is the case, Republicans could lose interest in the November, which would affect the Congressional races, ultimately providing gains to the Democrats. Interesting…
November 2018 seems so far in the future right now, but there will be non-stop activity leading up to it. I can almost hear the sigh of relief when November 6 passes and the world becomes quite again.
We can count on a very busy and very noisy political season in 2018 with lots of those dreaded campaign signs!!!!
This is the final article in a series of five addressing new employment-related laws for 2018. Today we take a look at workplace safety and workers’ compensation.
SB 258 establishes the Cleaning Product Right to Know Act. It requires manufacturers of designated cleaning products to disclose the chemicals in those products and create product safety data sheets. Designated cleaning products include general cleaning, air care, automotive, or polish or floor maintenance products used primarily for janitorial, industrial or domestic cleaning purposes.
SB 258 affects employers that have these designated cleaning products in their workplaces. Under the existing Hazard Communications Program (which requires all employers to communicate workplace hazards to employees, particularly when employees handle or may be exposed to hazardous substances during normal work or foreseeable emergencies) standard, employers are required to maintain and make readily accessible safety data sheets providing information about hazardous substances. SB 258 will require employers to also obtain information from manufacturers about the cleaning products covered under this Act and make those safety data sheets available.
As for workers’ compensation, several bills were signed into law in 2018:
AB 44 requires employers to provide a nurse case manager to employees injured during the course of employment by an act of domestic terrorism. Employer-appointed nurse case managers will act as advocates to help injured workers obtain medically necessary medical treatments. This bill will also require an employer to provide a notice to claimants that will be developed by the Division of Workers’ Compensation. These provisions are applicable only if the governor declares a state of emergency in connection with an act of domestic terrorism.
The Division of Workers’ Compensation will adopt regulations to implement this new law, including regulations on the scope and timing of the employer’s obligation to provide a nurse case manager and the contents of the notice that employers must provide to claimants.
SB 189, which is effective July 1, 2018, clarifies when owners, officers of businesses, members of boards of directors, general partners in a partnership and managing members of LLCs may be excluded from workers’ compensation laws. This bill revisits AB 2883 from 2016, the structure of which was challenging to stakeholders. SB 189 also includes provisions allowing the ability to grandfather in prior waivers.
AB 1422 extends the automatic stay on liens filed by medical providers who are charged with criminal fraud. AB 1422 cleans up issues that resulted from the enactment of SB 1160 in 2016.
SB 489 extends the billing deadline for providers of emergency treatment services from 30 days to 180 days.
The California Chamber of Commerce is urging businesses to participate in the upcoming workshops to discuss draft regulations for the new state-run retirement savings program, Secure Choice.
Workshops are scheduled for December 5 at the State Personnel Board, located at 801 Capitol Mall, Room 150 in Sacramento, and December 7 at the Ronald Reagan State Building, Auditorium, 300 South Spring Street in Los Angeles from 10 a.m.–noon. Individuals who cannot attend the hearings in person may provide comments by phone at (888) 278-0296, participant code: 6531748.
Signed by Governor Edmund G. Brown Jr. in 2016, SB 1234 (de León; D-Los Angeles; Chapter 804), along with the original SB 1234 (de León; D-Los Angeles; Chapter 734) and SB 923 (de León; D-Los Angeles; Chapter 737) in 2012, creates a framework for the California Secure Choice Retirement Savings Investment Program.
The program is a state-run retirement savings plan for private employees that includes automatic enrollment with an opt-out provision for an estimated 6.3 million California workers whose employers do not currently offer an eligible retirement savings program. Private employers with five or more employees will be required to automatically enroll their employees into and make payroll deductions for their Secure Choice retirement accounts, unless the employee opts out.
Employers that do not offer a retirement plan or do not auto-enroll their employees into Secure Choice would be subject to a penalty; otherwise the program is intended to impose no risk or liability to the employer or to the state. It is intended that employers’ responsibility is simply as a pass-through; to deduct and submit contributions from employee wages.
The program will be funded by an automatic 3% to 5% payroll deduction; specific default contribution will be determined by the Secure Choice Investment Board. There is no contribution made by the employer into the retirement account.
According to the State Treasurer’s Office, late 2019 is likely to be the earliest that large employers that do not offer a retirement plan to their employees will be required to provide access to Secure Choice. The requirement will be phased in over a three-year period. Any information to the contrary is wrong. Please contact the Treasurer’s Office if you are told something different so they can correct the source by emailing firstname.lastname@example.org.
CalChamber will continue to actively engage in rulemaking, closely monitor the activities of the Secure Choice Investment Board, and provide input as appropriate regarding program design and employer risk.