Episode 150: Questions Remain on Workplace Emergency Bill

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law Helpline manager and Employment Law Council with the California Chamber of Commerce. Today for us, we'll be revisiting a legislative proposal regarding workers in states of emergency, known as SB 1044 that we previously explored here on the podcast. However, since then, the bill continues to make its way through the legislative process with some amendments, but also some very significant gaps and ambiguities as well that continue to make it untenable for employers in its current position. As a brief recap, SB 1044 is a proposal that allows workers to access their cell phones or other communication devices or to simply leave the work site altogether without any repercussions from their employer as long as they inform their employers that they feel unsafe at work due to a state of emergency or other emergency conditions. And that's pretty much it. Short statutes can be fun to read and digest, but they also leave a lot of unintended consequences because they don't do a great job really exploring those situations that weren't thought about when they were drafted. So to talk about where this proposal is headed and what the Chamber is working on to make this proposal more workable for employers, we invited Cal Chambers, policy advocate focusing on employment issues, Ashley Hoffman, back to the podcast. Welcome back, Ashley.

Thanks, Matt.

All right, so, Ashley, I put the CliffsNotes version of SB 1044 out there, but first tell us what has changed with this bill since we last spoke about it.

So a few amendments were taken in the most recent committee. So it now only applies to states of emergency or emergency conditions after the bill's enactment. So the most significant change there would be Covid. Right. It wouldn't apply to the current Covid state of emergency. Also, it does require the employee to provide notice where possible, to the employer. And then finally, they did try and narrow a little bit the state of emergency definition by saying it no longer applies, or the state of emergency is still still technically in place, but the emergency conditions have ceased, which they really kind of define as, you know, it's no longer imminent and ongoing.

Right. And I think maybe we can go into this because there's two phrases being kicked around here. There's state of emergency, which I think we all understand. Right. The governor comes out and says states of emergency, you know, as it pertains to COVID 19. But then there's also something in the bill that's defined as emergency conditions. Ashley, can you elaborate on what emergency conditions means under the bill?

Yeah. So emergency condition is Envisioned, I think, by the author is something that is imminent, right? Like an imminent threat to, like, the structure or the health and safety of the employee. Or I believe it also mentions, like, the structure or something of, like, if you have a child, say, at school, right. And there's like a fire blazing next to the school. Something like that. Right. Is more of what they're contemplating with emergency condition. Also, an evacuation order would be count.

Excellent. So it sounds like some progress has been made to rein in this bill, but ultimately there's still some substantial problems. So let's discuss some of these ongoing issues. Ashley, what are you seeing right now?

Yeah, so I would say there's. There's kind of two pieces of the bill that still have a lot of concern about. So the first is, you know, what is what is really imminent and ongoing and who gets to decide what that is? You know, as we read the bill, it's very subjective to the worker and it can be interpreted quite broadly. So, for example, you could imagine a fire, right? The fire could be relatively under control. You know, the. The worker not has an immediate threat, but the AQI could still be higher than the worker is comfortable with. And so there's really no accounting for what Calosha has said on the subject. Right. For example, you have to have fitted N95 mass over a certain AQI. But this bill doesn't really account for that. So even if a worker, you know, at an AQI of 100 personally felt unhappy, uncomfortable, they, under this bill and our reading of it could refuse to work. And so it's not accounting for anything that the employer is doing, anything that Cal, OSHA or CDPH or whoever has said that an employer can do and that is safe for a worker to work in. And the next biggest issue really is that there is no carve out for emergency personnel or anyone who aids emergency personnel. So as you can imagine, right, There are a number of positions where your job literally is to aid in an emergency or aid in some sort of crisis. Right. That can range from like a firefighter, healthcare worker or police to like, communications, utilities. I think, again, maybe there was not a lot of thought about, hey, if there's a gas leak or something else, you know, who's the one that comes in and cleans that up to make sure that, that, that damage is being mitigated. It's very important that those people are reporting to work.

Right. And, you know, despite the bill's amendments that, you know, it only applies to future states of emergency. We can still foresee situations Here, like we have with the COVID 19 emergency. Let's take, for example, this hypothetical Governor Newsom ends the state of emergency for COVID 19, and then all of a sudden, it explodes again over the winter. We're going to see a new state of emergency after the bill's enactment. And I think you have a concern there, again, that the state of emergency exists, and it's still not a situation where there's really emergency conditions that warrant it. But it's that subjectivity. Right, Ashley? Because where does that leave the employer? What is the employer's choices there? When an employee says, hey, I need to go because I feel unsafe, what's the employer's choice?

Right. So at that point, if you dispute it, you know, you risk litigation. Right. You risk the employee saying that you violated this. This does fall under the labor Code. It is subject to paga. If you replace them, arguably. Right. That could be construed as an adverse action or retaliation. We see that all the time in especially retaliation suits, for example, under the Fair Employment and Housing act, you know, someone took my job duties, they reassigned me, you know, what have you. So it really gives the employer absolutely no flexibility to be able to respond to the situation if they are short on workers. Yeah.

And for those of us who have the experience in litigation, either as attorneys, like we have, Ashley, or those unfortunate employers that are in it, even if you're on the right side of history, so to speak, it's still very costly to even get to that point. So I think it's a huge concern for us. So, of course, we've labeled the bill a job killer due to the severe economic impacts that it may have. But what's the primary driver of why we've classified this as a job killer, Ashley?

Yeah. So again, we did an economic analysis and found that we'd estimate, you know, more than 20,000 jobs likely to be lost as a result of this, as well as a loss of state taxes. We estimate at about $117 million. And a lot of the industries that would be particularly hard hit would be like the health care, social assistance industry, food services, and likely some of the kind of scientific and technical services industries as well.

Yeah. And you know what? I actually like to highlight that healthcare industry example there, because as you said, and as we've said, there's these unintended consequences with this. Who's gonna be there to stop the gas leak or put out the fire if there's not these carve outs here? And it's the same kind of thing if there's people who are injured in the area and the hospitals have to take in patients and things like that. And the whole expectation from the public is that someone will be there to care for us. There's nothing in this bill that prevents nurses and doctors from just walking off.

Right, Right. Nothing in the bill exempts them kind of similarly. Right. Some concerns that we heard were transportation or like roadside assistance. You know, these are things that often, as you mentioned, come up during an emergency and there's absolutely no exemptions. You know, the author has stated that she will consider some exemptions, but it's really not clear at all at this point, you know, how wide widespread she'd be willing to go with that. And I think, as we've already mentioned on this podcast, there's quite a few industries that really do need to be exempt from this bill.

Okay. So this creates a significant new process for an employer's workplace safety protocol, something that the employer would need to be familiar with should this go through. So, of course, employers are sure to be wondering, what's the status of this bill and where is it headed? Ashley?

So this bill is presently in the Senate Appropriations Committee. It is on what we call the suspense file, which means that it the cost of the state exceeds a certain amount. And so the Appropriations Committee kind of puts it on hold, you could say, until the end of May, and then we'll make a decision whether or not the bill should move forward or move forward with amendments. So this one is on hold until the end of May. However, of course, if you have concerns about it, encourage you to reach out to your legislator now.

Excellent. Well, this was a great dissection of SB 1044 as it currently stands. Hopefully we see some changes there in the future. So thank you, Ashley, for being here today to provide that analysis.

Thank you.

And thank you, listeners, for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.