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California Wildfires Increase Employer Concerns

By Charles O. Thompson & Vanessa C. Krumbein on September 2, 2020
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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-19, https://www.cdc.gov/disasters/covid-19/wildfire_smoke_covid-19.html (last visited August 25, 2020).

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

3 See Cal. Lab. Code § 230.3.

Photo of Charles O. Thompson Charles O. Thompson

Charles Thompson is a dynamic and creative trial lawyer serving national and global clients in high-stakes litigation. He 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

…

Charles Thompson is a dynamic and creative trial lawyer serving national and global clients in high-stakes litigation. He 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, has litigated and appealed cases from California State Courts to the United States Supreme Court, and is a Fellow of the prestigious College of Labor and Employment Lawyers. His case load includes cutting edge technology companies, air and space and retail.

Charles represents employers in wage and hour cases, as well as EEOC class actions, in state and federal courts across the United States and has broad experience appearing before the California Civil Rights Department, the Division of Labor Standards Enforcement, the Employment Development Department, and the United States Equal Employment Opportunity Commission and the Department of Labor.

In addition to his trial and counseling work, Charles serves as a private and judicial mediator and arbitrator, and has acted as a pro-tem judge upon request of the court. He has broad experience in binding arbitrations and trial. He has taught trial advocacy, diversity, employment cross border conflicts and substance abuse to clients and industry organizations.

Throughout his career, Charles has been a champion for diversity and has served on the Executive Committee of the board of Directors for the Justice & Diversity Center of The Bar Association of San Francisco. He actively supports and promotes diversity efforts and collaborates with clients on diversity issues.

Read more about Charles O. ThompsonEmailCharles O.'s Linkedin Profile
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Photo of Vanessa C. Krumbein Vanessa C. Krumbein

Vanessa C. Krumbein focuses her practice on providing compliance-related and strategic advice to corporate clients of all sizes on all aspects of employment law. Vanessa is a go-to point of contact for advice on a wide range of workplace issues, including employee performance

…

Vanessa C. Krumbein focuses her practice on providing compliance-related and strategic advice to corporate clients of all sizes on all aspects of employment law. Vanessa is a go-to point of contact for advice on a wide range of workplace issues, including employee performance and discipline, mitigating risk associated with employee terminations, compliance with wage and hour and disability accommodation laws, reorganizations and reductions in force, pay transparency, background checks, paid time off issues, workplace complaints, and a variety of other employment matters. Vanessa also works closely with clients to draft and implement employee handbooks and other personnel policies with the goal of making them easy to understand by employees, provides training on maintaining discrimination and harassment-free workplaces, and conducts investigations to address employee complaints of unfair treatment. Vanessa also has experience working on employment issues unique to clients in the media and entertainment sector.

Vanessa is also a go-to source for creating employment documents of all types (such as employment and independent contractor agreements, arbitration agreements, non-competes, confidential information, and IP protection agreements, commission and bonus agreements, and severance packages), and is regularly engaged to conduct audits of workplace wage and hour practices. Vanessa also handles employment-related issues and diligence in M&A transactions and counsels on post-merger employee integration matters. Vanessa regularly partners with clients and colleagues across the globe.

Vanessa has a considerable litigation background which gives her a unique perspective when counseling clients on employment best practices. Vanessa has experience litigating class actions, single-plaintiff, and multi-party civil cases, representing employers in state and federal court on a wide range of labor and employment matters, including, for example, claims of discrimination, retaliation, harassment, wrongful termination, violations of privacy, violations of leave laws, wage and hour disputes, and in responding to and negotiating resolution of charges filed with administrative agencies.

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  • Posted in:
    Employment & Labor
  • Blog:
    GT L&E Blog
  • Organization:
    Greenberg Traurig, LLP
  • Article: View Original Source

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