Effective January 1, 2023, Senate Bill 1044 will prohibit employers from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite during an “emergency condition” when the employee has a reasonable belief that the workplace or worksite is unsafe.  An “emergency condition” means the existence of either: (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; or (2) an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act. Importantly, an emergency condition does not include a health pandemic.

A “reasonable belief that the workplace or worksite is unsafe” means that a reasonable person would conclude there is a real danger of death or serious injury if that person enters or remains on the premises. However, it should be noted that the law allows consideration of conditions and compliance with regulations that are employer specific: “[t]he existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations shall be a relevant factor if this information is known to the employee at the time of the emergency condition or the employee received training on the health and safety regulations mandated by law specific to the emergency condition.”

In addition, SB 1044, which will be codified as Labor Code section 1139, requires that, in the event of a perceived emergency condition, an employer may not prevent any employee from accessing communication devices for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to verify their safety. However, when feasible, the employee must notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite prior to leaving or refusing to report.  If prior notice is not feasible, the employee must provide notice of the emergency condition as soon as possible thereafter.

This law does not apply to public and private employers and professions associated with emergency and disaster relief such as, but not limited to first responders, disaster service workers, licensed residential care facility employees, and employees whose primary duties include assisting members of the public to evacuate in case of an emergency.

An employer’s failure to comply with SB 1044 can create the potential for penalty claims under the Private Attorneys General Act of 2004.