By: Ashley Hoffman
A California Chamber of Commerce job killer bill that will excuse workplace absenteeism and cripple emergency response faces a key deadline on Friday, when it must pass out of the Senate in order to keep moving through the legislative process.
The proposal, SB 1044 (Durazo; D-Los Angeles), allows employees to leave work or refuse to show up to work if an employee feels unsafe regardless of existing health and safety standards or whether the employer has provided health and safety protections. The bill further subjects employers to costly PAGA lawsuits if they dispute the employee’s decision or need to have another employee take over any job duties.
Ignores Existing Protections
Workers have significant protections under current law, including a right to refuse dangerous work. All California employers have a legal duty to ensure that the place of employment is safe and healthful.
Employers may not require workers to be at a location that is not safe or healthful and must do everything reasonably necessary to protect the life, safety, and health of employees.
Across industries and workplaces, employers must at a minimum have 1) an Emergency Action Plan, 2) Fire Prevention Plan, and 3) Injury and Illness Prevention Program. In addition, Cal/OSHA has many hazard-specific regulations which address the issues underlying recent states of emergency in California, including: wildfire smoke, outdoor heat and COVID-19. Cal/OSHA will soon be issuing regulations specific to indoor heat.
Further, in 2020, the Legislature made it a crime to require an employee to remain in their place of work if there was a notice to evacuate or leave. SB 1044 completely ignores the protections that these regulations already provide in making long-term emergency topics—such as wildfire and heat—safer for California’s workplaces. Instead, this bill just allows workers to walk away from their jobs.
Essential workers are labeled essential for a reason. Their work is vital to a functioning society, especially in times of emergency. While recent amendments added some exemptions, notable ones are missing for workers that either provide services during an emergency or where workers are needed to help evacuate others. Those include: assisted living facilities for the elderly, private firefighters, ambulance drivers, and more. Further, while the bill exempts utilities that are aiding emergency response, it does not exempt those necessary to ensure the public continues to have water or electricity during an emergency.
By failing to consider the safety consequences of allowing certain personnel to walk off the job, SB 1044 fails to take into account the safety of the public.
Liability under PAGA
SB 1044 subjects employers to costly PAGA lawsuits that serve to benefit plaintiffs’ attorneys. For all other health and safety-related statutes, plaintiffs must first have Cal/OSHA investigate before they can file a lawsuit. Cal/OSHA has the ability to cite the employer if it agrees that the employer violated the law. Only if Cal/OSHA decides not to issue a citation can the plaintiff proceed with a lawsuit. SB 1044 circumvents this procedure by allowing plaintiffs to immediately file in court, subjecting employers to thousands of dollars in defense costs regardless of whether the claim is meritorious.