Employers, safety first for your employees in extreme weather circumstances.
The tragic stories that we all saw in the path of destruction left by recent hurricanes is a good reminder that no community is safe from the damages of climate change and extreme weather. Out of many tragic stories, one that received a great deal of attention—and has already generated at least one lawsuit—is the story of Impact Plastics, a company in a small town in rural Tennessee. According to Impact Plastics employees, their managers would not allow employees to leave the plant in enough time to avoid the worst of the flooding caused by Hurricane Helene. Instead, employees claim they were not allowed to leave until the parking lot had already flooded and power knocked out. Multiple employees subsequently died in the flooding.
In light of such a sad story, the question becomes, what rights do employees have to refuse to stay at work in unsafe situations—and what liabilities do employers face for demanding that workers come to work even in the face of potentially catastrophic weather events?
In Wisconsin, most private-sector employees are covered by a federal health and safety law enforced by the Occupational Health and Safety Administration (OSHA). Wisconsin public employees are covered by safety and health standards of the Wisconsin Department of Safety and Professional Services.
OSHA’s General Duty clause (29 U.S.C. § 654) requires an employer to provide a safe workplace, including protection from natural disasters and other emergencies. The General Duty clause requires an employer to provide a safe workplace free from hazards. OSHA may find an employer violated the General Duty clause if a hazard existed that was likely to cause death or serious physical harm, the employer was aware of the hazard, the hazard was foreseeable, and workers were exposed to the hazard.
According to OSHA, climate change is impacting the workplace by increasing the severity of hazards to the health of workers.[1] In Wisconsin, those hazards involve increased risk of heat injuries and illnesses during periods of higher-than-average temperatures, and more frequent extreme weather events like flooding, severe thunderstorms and blizzards.[2] In other areas like California, the hazards include wildfires.
These increased risks resulted in California law prohibiting an employer from taking or threatening an adverse action against an employee for refusing to report to work or for leaving work because of a reasonable belief that the workplace is unsafe due to an emergency condition.[3] An emergency condition includes a condition of disaster or extreme peril to the safety of persons or property at the workplace caused by natural forces or criminal acts.[4] Although Wisconsin has no similar provision, as the impacts of climate change continue to increase, employers and their employees will face increasing hazards at work. Employers with employees whose workplaces and job duties place them at risk due to climate change hazards may want to prepare communications addressing procedures for employees when a hazard impacts the workforce. Also, employers should not take action against an employee who refuses to perform work because of a climate-change related hazard or who reports a work absence because of a climate-change related hazard.
Clients or businesses with questions about this article may contact Attorney Jessica Mederson at (608) 259.2643 or jmederson@staffordlaw.com, Attorney Pamela Ploor at (414) 982.2854 or pploor@staffordlaw.com, or their Stafford Rosenbaum attorneys.
[1] Impacts of Climate Change in the Workplace, U.S. Dept. of Labor, OSHA, https://www.osha.gov/emergency-preparedness/impacts-of-climate-change# (last accessed on 10/17/2024).
[2] Id.
[3] California Labor Code § 1139.
[4] Id. §1139(a)(1)(A)(i).
Stafford Rosenbaum LLP is a full-service law firm with two convenient office locations in Madison and Milwaukee, Wisconsin. 145 years of dedication to businesses, governments, nonprofits, and individuals has proven that effective client communication continues to be the heart of our practice.
The post Bosses Beware: Safety Comes First in the Face of Extreme Weather first appeared on Stafford Rosenbaum LLP.