Labor Code 1139: When Workers Can Refuse Work in an Emergency
During a wildfire, flood, or active-shooter event, a California employer generally can’t punish a worker for staying away from an unsafe worksite. Labor Code section 1139, added by SB 1044 effective January 1, 2023, bars adverse action against an employee who refuses to report to, or leaves, a worksite in the affected area based on “a reasonable belief that the workplace or worksite is unsafe.” It also protects phone access during the emergency. Long lists of exempt workers, a notice duty, and a cure right shape the defense.
What counts as an emergency condition?
A disaster or an evacuation order caused by natural forces or crime. Section 1139(a)(1) defines it as “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 “An order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.”
Two points stand out. The evacuation prong covers a worker’s home and a child’s school, not only the workplace. And the statute says an emergency condition “does not include a health pandemic.”
What is a reasonable belief that the worksite is unsafe?
An objective test. Subdivision (a)(2) asks whether “a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises.”
The employer’s safety rules matter here. The statute makes health and safety regulations specific to the emergency, and the employer’s compliance with them, “a relevant factor” if the employee knew about them or was trained on them. A business that has trained staff on its wildfire smoke or evacuation plan, and follows it, is better placed to argue a worker’s fear wasn’t reasonable.
Which employees are excluded?
A long list. The anti-retaliation rule in subdivision (b)(1) doesn’t apply to first responders as defined in Government Code section 8562, disaster service workers, and employees “required by law to render aid or remain on the premises in case of an emergency.” It also excludes many health care workers who provide direct patient care and staff of licensed residential care facilities, along with employees of depository institutions.
Other exclusions reach employees of private contractors providing emergency services to government, workers on military bases or in the defense industrial base, some utility, communications, energy, and roadside assistance employees during emergency response, transportation workers in active evacuations, and employees whose primary duties include helping the public evacuate. An employer in one of these sectors should check exactly which listed category its people fall into.
What about phones?
Employers can’t block emergency communication. Subdivision (b)(2) bars preventing an employee from using a mobile or other communications device “for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to verify their safety.”
Workplaces with no-phone rules, such as warehouses and some production floors, should build in an emergency exception. The phone rule has its own, shorter list of exclusions, including depository institutions and correctional facilities.
Does the employee have to tell the employer?
Yes. Under subdivision (c), “When feasible, an employee shall notify the employer of the emergency condition” before leaving or refusing to report. When advance notice isn’t feasible, notice must come “as soon as possible” afterward.
The protection also ends with the danger. The statute isn’t meant to apply once conditions posing “an imminent and ongoing risk of harm” have ceased. A worker who stays out days after an evacuation order is lifted and the area reopened is on weaker ground.
What exposure does a violation create?
PAGA claims, with a cure right. Subdivision (e) says that in any action that could be brought under PAGA for violations of the chapter, “the employer shall have the right to cure alleged violations as set forth in Section 2699.3.” A worker may also pair a section 1139 theory with wrongful termination and retaliation claims.
Emergency refusal rules at a glance
| Issue | Rule |
|---|---|
| Covered events | Disaster or evacuation from natural forces or crime |
| Pandemics | Excluded |
| Employee’s belief | Reasonable person standard, real danger of death or serious injury |
| Exempt workers | First responders, many health care and residential care staff, others listed |
| Phones | Can’t bar use for emergency help or safety checks |
| Employee notice | Before leaving when feasible, otherwise as soon as possible |
| PAGA | Employer has a right to cure |
After an emergency-related absence dispute
- Preserve attendance records, schedules, emergency alerts and evacuation orders for the area, texts with the worker, and the company’s emergency and phone policies.
- Calendar the deadline on any PAGA notice or complaint, and note the cure period, along with any arbitration agreement and EPLI notice requirements.
- Identify the managers who decided on discipline and stop any further action against the worker while the facts are reviewed.
- Pull the records showing when the worker gave notice, when the emergency ended, and whether the worker’s job falls in an exempt category.
- Talk to a lawyer before deciding whether to cure, reverse discipline, or respond.
The firm’s page on retaliation defense for California employers explains how it handles retaliation and wrongful termination claims.
Emergency condition questions from employers
Do we have to pay a worker who stays home during an evacuation?
Section 1139 bars adverse action. It doesn’t by its terms create a pay obligation. Whether wages are owed depends on exempt or nonexempt status, reporting-time rules, and any paid sick leave the worker chooses to use. Look at those rules separately before deciding on pay.
Does a power outage count?
Only if it’s part of a disaster or extreme peril caused by natural forces or a criminal act, or tied to an evacuation order. A planned utility shutoff, standing alone, is harder to fit within the definition. The facts of each event matter.
Can we require proof of the evacuation order?
The statute doesn’t address documentation. Asking for reasonable information about the emergency condition after the fact is generally fine, so long as the request doesn’t function as a penalty. Public evacuation maps and alerts are often the easiest proof for both sides.
Does section 1139 apply to remote workers?
The anti-retaliation rule speaks of refusing to report to, or leaving, a workplace or worksite. A fully remote worker evacuated from home raises different questions, including reasonable accommodation and leave rules. Treat those situations case by case.
If a worker claims retaliation over an emergency absence
If your company has received a PAGA notice or lawsuit claiming a worker was disciplined for staying away during a wildfire, evacuation, or other emergency, the notice record and the timing of the emergency usually shape the defense. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving emergency-related absences. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Labor Code section 1139 and Government Code section 8562.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.