On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
WHEN DISASTER STRIKES
Lawsuit Prevention for Employers
WHEN DISASTER STRIKES
Catastrophic Fires: What Are An Employer’s Legal Obligations To Employees?
An ounce of prevention is worth a pound of cure. For that reason, employers can do themselves a big favor by verifying that their Injury and Illness Prevention Program (which is required of all employers), includes an emergency action plan that complies with all applicable legal requirements.
Workplace injuries experienced in the course of preparing for or responding to fires and other natural disasters are normally covered by worker’s compensation insurance. Injuries that are not work-related may qualify as recognized physical or mental disabilities, and require employers to make “reasonable accommodations.” These may include time off from work or modified work duties, among others.
Because employee safety must always be any employer’s paramount concern, appropriate measures must be taken to protect employees from safety-related dangers associated with preparing for and responding to fires or other natural disasters.
Obviously, employee training is a key element in protecting employees from the hazards associated with addressing natural disasters. Employers should consider employing third-party disaster-relief contractors in the event of any emergency.
In addressing disasters, employees are often called upon to perform work outside of their normal scope of duties, sometimes without express instruction to do so.
Generally speaking, employers must compensate employees for all work the employer knew or had reason to believe would be performed. This includes hours beyond eight hours in a day or forty in a week, which must be paid at the overtime rate.
This is often true even if employees “volunteered” to stay late to meet an emergency.
During a natural disaster, employers often encounter persons, presently employed or otherwise, who volunteer their services. As a general rule, any person who performs services for another is legally presumed to be an employee under California law, and must be compensated accordingly. While some exceptions apply, these are extremely restrictive, and should not be relied on without competent legal advice.
Employers can expect employees to request leaves of absence during any natural disaster affecting the workplace.
An employer’s duty to compensate employees for time off may depend on whether the employee is an exempt employee.
For example, exempt employees may be entitled to their entire normal salary for any week in which any work was performed.
Leaves of Absence
Employees may have a legal right to take a leave of absence, and sometimes on a paid basis, depending on the circumstances. For example, California’s paid sick leave law and kin care legislation may entitle employees to take paid or unpaid leave to attend to health-related issues experienced by employees, their parents, grandparents, children, grandchildren, domestic partners and children of domestic partners, among others.
These requirements are complex and require the expertise of competent legal counsel.
These are just a few of the numerous employment law issues that may confront employers as they address natural disasters.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/