1. Labor Commissioner's Office

California wildfires – FAQs on laws enforced by the Labor Commissioner’s Office

1. Do workers have rights during emergency conditions?

   Workers have special rights during emergency conditions. It is illegal for employers to require workers to report to or prevent workers from leaving an affected work area if they reasonably believe it is unsafe. Employers cannot prevent workers from using their phones to access emergency assistance, assess the safety of a situation, or to confirm the safety of others. These protections continue until the emergency condition ends. Some workers are exempt, including first responders and disaster service workers. Please see Labor Code section 1139 for complete details. Please also see Cal/OSHA Worker Health and Safety in Wildfire Regions website.

   Labor Code section 1139 does not require time off to be paid, although employees may be able to use available vacation or other paid leave under their employer’s regular policies or practices. Notwithstanding, Labor Code section 246.5 provides that “agricultural employees,” as defined in Labor Code section 9110, who work outside and are entitled to paid sick days can use paid sick leave “to avoid smoke, heat, or flooding conditions created by a local or state emergency, including, but not limited to, when the employee’s worksite is closed due to the smoke, heat, or flooding conditions.”

   Avoiding hazardous conditions like wildfire smoke might also constitute “care” of an existing health condition or “preventative care” under Labor Code section 246.5, entitling employees to use paid sick leave. You can learn more about paid sick leave here. You may also wish to explore the use of CA State Disability Insurance to care for yourself or a family member.  More information is provided below.

   If you are discharged, discriminated against, retaliated against, or otherwise subjected to adverse action for exercising your rights under the Labor Code, you can file a retaliation complaint with the Labor Commissioner.

2. Am I able to access CA State Disability Insurance (DI) if I can’t work?

   Workers who have experienced a loss of wages or can’t work due to a serious illness or injury may visit EDD’s website for more information about the Disability Insurance program. This program requires a worker’s medical provider to certify their claim for benefits.

   In addition, Disability Insurance (DI) provides partial wage replacement benefits to eligible California workers who are unable to work due to a non-work-related illness, injury, or pregnancy. If you were injured by the disaster, you may be eligible for DI benefits. You may also qualify for a non-work-related illness or injury caused by the wildfire, such as: stress, burn injuries, or smoke inhalation; as certified by a physician/practitioner.

   Furthermore, if High Air Quality Index (AQI) and/or smoke exposure presents a health risk to you and/or a baby during pregnancy you may be eligible for DI. Specifically, healthcare providers may certify a patient as disabled for disability benefits if the patient’s job requirements pose a danger to the health of a pregnant patient or the fetus. If your physician/practitioner finds that it is not medically safe for you to perform your normal and usual work, you can apply for disability.

3. If I have to leave work to care for a sick family member due to the fires, what other benefits are available?

   Paid Family Leave (PFL) provides benefits if you lose wages when you need to take time off work to care for a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner. If you need to care for a family member injured in the disaster, you may be eligible for PFL benefits.

   A serious health condition means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or at home. This includes any period of incapacity (e.g., inability to work, attend school, or perform other regular daily activities) or any subsequent treatment in connection with such inpatient care, or continuing treatment by a physician or practitioner.

4. Can employers require employees to work in areas under mandatory evacuation orders?

   It is unlawful to direct an employee to enter or remain in an area subject to mandatory evacuation due to fires.

   Requiring employees to work in areas under mandatory evacuation orders may violate the Government and Penal Codes, in addition to the Labor Code. Labor Code section 1102.5 protects employees from retaliation for refusing to participate in activity that would result in violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Labor Code section 6311 also protects employees for refusing to perform work that would violate the Labor Code, including Labor Code section 6400, any occupational safety or health standard, or any safety order of the division or standards board, if the violation would create a real and apparent hazard to employees.

   Relatedly, Labor Code section 6311.5 prohibits a person from willfully and knowingly directing employees to remain in or enter areas closed due to a menace to the public health or safety created by a calamity including a flood, storm, fire, earthquake, explosion, accident, or other disaster as set forth in Penal Code section 409.5, after receiving notice to evacuate or leave, with some exceptions. Please see Labor Code section 6311.5 and Penal Code section 409.5 for complete details. Again, if you are discharged, discriminated against, retaliated against, or otherwise subjected to adverse action for exercising your rights under the Labor Code, you can file a retaliation complaint with the Labor Commissioner. Employers and workers may wish to view Cal/OSHA’s Worker Safety and Health in Wildfire Regions website, 

5. Are employees entitled to compensation for work interruptions caused by power outages or wildfires?

   Employees must be compensated for all hours worked, including all time employees are under their employer’s control, even if they are not working. “Hours worked” includes both all time employees are suffered or permitted to work, whether or not required to do so, and all time during which employees are subject to the control of their employer. Restricting employees to the employer’s premises, or a worksite, means employees are subject to their employer’s control so as to constitute “hours worked.” (See Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575; Bono Enterprises v. Bradshaw (1995) 32 Cal.App.4th 968.) Under such circumstances, the employees must be paid their regular rate of compensation (which cannot be less than the minimum wage) and overtime, if applicable.

   If an employer facing a power outage requires employees to remain on the premises and wait for the power to return so as to promptly resume operations once power is restored, the time during which the employees are restricted to the premises constitutes compensable “hours worked,” and the employees must be paid their regular rate of compensation for all such time. If the employer instead allows employees to leave the premises but significantly restricts their movement, the employees must be paid for all that time too, being compensable “standby” time.

   Employees may be entitled to split shift premiums if an employer facing power outages sends them away from the premises with instructions to return at a later time during that same workday. The Wage Orders define a “split shift” as “a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods,”  and provide that  “when an employee works a split shift, one hour’s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment.

6. If an employee is exempt, are they entitled to a full week’s salary for work interruptions caused by power outages or wildfires?

   An exempt employee is entitled to recover wages for the full week if that employee is suffered or permitted to work anytime within that workweek. (See discussion at Section 51.6.15 of the Enforcement Policies and Interpretations Manual.)

7. Is an employee entitled to additional compensation for disruptions caused by power outages or wildfires when the employee’s work schedule is subject to a bonafide Alternative Workweek (AWW) arrangement?

   If an employer facing a power outage is on an AWW, and the employer sends its workers home during a regularly scheduled workday, with instructions that the workers come in and work later in the week to make up their lost hours on a day that is not a regularly scheduled workday, the first 8 hours worked on the non-regularly scheduled workday must be paid at time and a half, and all hours worked in excess of 8 hours on the non-regularly scheduled day must be paid at twice the regular rate.

   However, if an employer on an AWW anticipates that it can reduce its exposure to power outages by occasionally shifting the scheduled days (say from a 4/10 Mon-Thurs to a 4/10 Thurs-Sun), and gives its workers at least a week’s notice of the schedule change, the AWW remains valid. For enforcement purposes, the Labor Commissioner will allow an employer to shift schedules up to 4 times in a year.  More frequent changes will invalidate the AWW.

8. Is an employee entitled to be paid for leave caused by power outages or wildfires?

   If there is a vacation or paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the vacation or paid time off policy provides for such leave.

   Paid sick leave may apply if the employee is qualified to receive such leave and requests to take leave for a sick reason. The paid sick leave law provides that an employer shall provide paid sick days for the following purposes:

   • (1) Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
   • (2) For an employee who is a victim or whose family member is a victim, as defined in subdivision (j) of Section 12945.8 of the Government Code, the purposes described in paragraph (3) of subdivision (a), or subdivision (b), of Section 12945.8 of the Government Code.
   • (3) For an employee who is an agricultural employee, as defined in Section 9110, who works outside and who is entitled to paid sick days under this article, to avoid smoke, heat, or flooding conditions created by a local or state emergency, including, but not limited to, when the employee’s worksite is closed due to the smoke, heat, or flooding conditions. There are smoke, heat, or flood conditions created by a local or state emergency if the Governor proclaims a state of emergency pursuant to Section 8625 of the Government Code, or a local emergency is proclaimed pursuant to Section 8630 of the Government Code, due to smoke, heat, or flooding conditions that prevent agricultural employees from working.

   (Lab. Code § 246.5, subd. (a).)

   If the employee qualifies for sick leave and requests sick leave, the employer must provide such leave and must compensate the employee under California Paid Sick Leave laws. The employee may also be eligible for CA State Disability Insurance depending as described above,   

   Employees and employers may also wish to consider eligibility for Family, Medical, and Pregnancy Disability Leave for Employees in California | CRD (CFRA) or for federal government workers, Family and Medical Leave Act | U.S. Department of Labor (FMLA). 

9. What are relevant retaliation considerations?

   Labor Code section 98.6 protects an employee from retaliation for filing a bona fide complaint or claim or instituting or causing to be instituted any proceeding under or relating to their rights under the jurisdiction of the Labor Commissioner, making a written or oral complaint they are owed unpaid wages, exercising on behalf of themselves or others any rights afforded them under the Labor Code, and more. Labor Code section 98.6 provides a rebuttable presumption of unlawful retaliation if an employer engages in any action prohibited by this section within 90 days of the protected activity specified in this section. In addition to other remedies that might be available, Labor Code section 98.6 provides a penalty of up to $10,000 per employee for each violation to be awarded to each employee who suffered the violation. If you are discharged, discriminated against, retaliated against, or otherwise subjected to adverse action for exercising your rights under the Labor Code, you can file a retaliation complaint with the Labor Commissioner.

10. Are there protections for employees taking time off to perform emergency duty as a volunteer firefighter, a reserve peace officer, or emergency rescue personnel?

    Labor Code section 230.3 protects employees from retaliation for taking time off to perform emergency duty as a volunteer firefighter, a reserve peace officer, or emergency rescue personnel. This protection does not apply to any public safety agency or provider of emergency medical services if, as determined by the employer, the employee’s absence would hinder the availability of public safety or emergency medical services. Employees who are health care providers must notify their employer when they become designated as emergency rescue personnel and when they are notified that they will be deployed because of that designation. Please see Labor Code section 230.3 for complete details.

11. Other information about California wildfires and the laws enforced by the Department of Industrial Relations.

    Wildfire smoke and cleanup presents hazards that employers and workers in affected regions must understand. Smoke from wildfires contains chemicals, gases and fine particles that can harm health. Hazards continue even after fires have been extinguished and cleanup work begins. Proper protective equipment and training is required for worker safety in wildfire regions.

    Power outages can also present electrical and other hazards for workers. Proper installation and use of generators can prevent electrocution hazards. Workers must also be aware of the potential of electrocution or being injured by moving parts of machinery and other equipment when power is restored. Workers can also face health hazards from working without electricity in unventilated areas because ventilation systems are not working.

    For more information visit Worker Safety and Health in Wildfire Regions.

January 2025