California “Anti-Retaliation” law provides workers’ rights in emergencies

On January 1, 2023, Senate Bill 1044 became law in California, codified under California Labor Code § 1139. The law is intended to protect employees from retaliation by their employers in the event of an emergency situation or an unsafe workplace. Section 1139 applies to all employees in California except for those whose jobs are directly involved in emergency management, such as first responders and disaster service providers.

Union representatives may wish to use this new legislation as an opportunity to organize at their work sites and talk with represented employees about their rights.

Employer Requirements

Under section 1139, employers cannot, in the event of an emergency situation, take or threaten adverse action against any employee for refusing to report to, or leaving, a workplace or worksite because the employee has a reasonable belief that the workplace or worksite is unsafe.

Employers also cannot prevent any employee from accessing the employee’s cell phone or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety.

Once the emergency conditions that posed an imminent and ongoing risk of harm have ceased, these protections no longer apply.

What is an emergency situation under section 1139?

The law defines an emergency situation as:

1. 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.

2. 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.

Notably, the law excludes health pandemics, such as the COVID-19 pandemic.

When is an employee’s belief reasonable?

An employee’s belief is “reasonable” if a reasonable person in the same circumstances would conclude there is a real danger of death or serious injury if that person enters or remains on the premises.

Employee Reporting Requirements

An employee is required to notify their employer of the emergency condition prior to leaving or refusing to report to the workplace only when feasible. If it is not feasible to notify their employer in advance, the employee should notify their employer of their leaving or refusal to work as soon as possible.

For more information about this new law or others, please contact your labor law counsel.

By Sara Zollner