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Training and Development: California

Training and Development requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Adam W. G. Freed and Anthony J. Oncidi, Proskauer Rose LLP

Summary

  • Qualifying California employers must train their employees on issues of sexual harassment, safety and heat prevention. Training on other topics, such as discrimination, is also recommended. See Mandatory Training.
  • Training time must be paid under California law unless it is voluntary. See Wage and Hour Considerations.
  • Employees are deemed nonexempt while training for an exempt position. See Wage and Hour Considerations.

Mandatory Training

Sexual Harassment Training

In California, employers with at least five employees are required to provide sexual harassment prevention training to all supervisors located in California:

  • Within six months of hire or promotion; and
  • Every two years thereafter.

+Cal Gov Code § 12950.1; +2 CCR 11024; +2017 Bill Text CA S.B. 1343.

Amendments to California law require that employers provide training by January 1, 2020. After the January 1, 2020, deadline, each covered employer must provide sexual harassment training and education to each employee in California once every two years. This requirement applies to migrant and seasonal agricultural workers.

Beginning January 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than six months, an employer must provide training within 30 calendar days after the hire date or within 100 hours, whichever occurs first. If an employee is hired by a temporary services employer, then the training must be provided by the temporary services employer, and not its client.

The five-employee threshold includes all employees located both within California and out of state, and includes temporary employees and independent contractors.

Two-hour training must be directed to any employee with supervisory authority, which is defined as having the authority to exercise independent judgment to hire, transfer, promote, discharge, assign, reward or discipline other employees, the responsibility to direct them or adjust their grievances, or the authority to effectively recommend any of the foregoing actions.

One-hour training must be provided to nonsupervisory employees.

The harassment prevention training must include the following information:

  • A definition of unlawful sexual harassment under the California Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act of 1964;
  • FEHA and Title VII provisions and case law principles concerning the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment;
  • The types of conduct that constitute sexual harassment;
  • Remedies available for sexual harassment victims in civil actions and potential employer or individual liability;
  • Strategies to prevent sexual harassment in the workplace;
  • The limited confidentiality of the complaint process;
  • Practical examples that illustrate sexual harassment, discrimination and retaliation;
  • Resources for victims of harassment;
  • The employer's obligation to conduct an effective workplace investigation of a harassment complaint and take appropriate remedial measures to correct harassing behavior;
  • The limited confidentiality of the complaint process;
  • A supervisor's obligation to report any complaints of sexual harassment, discrimination and retaliation of which they become aware to a designated corporate representative, such as human resources manager, so the employer may try to resolve the claim internally;
  • The prevention of abusive conduct;
  • Training on what to do if the supervisor is personally accused of harassment; and
  • The essential elements of an antiharassment policy and how to use it if a complaint is filed.

See California Sexual Harassment Training for Supervisors.

Abusive conduct prevention training must be included as a component of the training requirements. In addition, the abusive conduct component should be incorporated into the 80 hours of mandatory training provided to all new supervisory public employees. +Cal Gov Code § 19995.4(b).

The law defines abusive conduct as malicious conduct by an employer or employee that a reasonable person would find "hostile, offensive, and unrelated to an employer's legitimate business interests." Examples of abusive conduct include:

  • Repeated infliction of verbal abuse (e.g., derogatory remarks, insults or epithets);
  • Threatening, intimidating or humiliating verbal or physical conduct; or
  • Gratuitous sabotage or undermining of an employee's work performance.

A single act may constitute abusive conduct, but only if it is especially severe or egregious.

The abusive conduct component should be covered in "a meaningful manner" under the regulations, because it has a number of negative effects on the victim of the conduct as well as others in the workplace. The conduct has detrimental effects on employers, including a reduction in productivity and morale.

Covered employers have to offer, as part of a component of harassment prevention training, content on harassment based on gender identity, gender expression and sexual orientation. The training and education must include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and must be presented by trainers or educators with knowledge and expertise in those areas. +Cal Gov Code § 12950.1.

As part of its sexual harassment prevention training, an employer may provide bystander intervention training that includes information and practical guidance on how to:

  • Enable bystanders to recognize potentially problematic behaviors; and
  • Motivate bystanders to take action when they observe problematic behaviors.

The bystander intervention training may include exercises to provide bystanders with:

  • The skills and confidence to intervene as appropriate; and
  • Resources to call upon that support their intervention.

+2017 Bill Text CA S.B. 1300, adding Cal Gov Code § 12950.2.

The training must be in an interactive form, such as through classroom training, computer-based e-learning training, a webinar or other similarly effective interactive training that incorporates the aforementioned techniques. The presentation must include questions that assess learning, skill-building activities that assess the supervisor's application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training.

Skill-building activities include:

  • Pre- or post-training quizzes or tests;
  • Small group discussion questions;
  • Discussion questions that accompany hypothetical fact scenarios;
  • Use of brief scenarios discussed in small groups or by the entire group; or
  • Any other learning activities geared towards ensuring interactive participation as well as the ability to apply what is learned to the supervisor's work environment.

Model training and materials. The Department of Fair Employment and Housing (DFEH) will provide training courses to be posted on its website for use by employers. The courses must contain an interactive feature that requires the viewer to respond to a question periodically in order for the online training course to continue to play. Any questions resulting from the online training course must be directed to the employer's HR Department or an equally qualified professional, but not DFEH.

The DFEH will either develop or obtain the courses, which will be:

  • One hour in length for nonsupervisory employees; and
  • Two hours in length for supervisory employees.

The DFEH will provide a method for employees who have completed the training to save electronically and print a certificate of completion. The DFEH has provided certain resources for employers pending the availability of online courses.

For purposes of providing the training to employees, an employer may comply with mandatory requirements by:

  • Developing its own training module; or
  • Directing employees to view the online training course.

+2017 Bill Text CA S.B. 1343, amending Cal Gov Code § 12950.1.

In addition, the amendments require the DFEH to make existing informational posters and fact sheets, as well as online training courses, available to employers and to members of the public in specified alternative languages on the DFEH's website. The following languages are listed:

  • English;
  • Spanish;
  • Simplified Chinese;
  • Tagalog;
  • Vietnamese;
  • Korean; and
  • Any other language that is spoken by a "substantial number of non-English-speaking people" as defined by law.

+2017 Bill Text CA S.B. 1343, amending Cal Gov Code § 12950.

Records. Employers must keep a record of each supervisor's training, which contains:

  • The supervisor's name;
  • The training date;
  • The sign-in sheet;
  • A copy of all certificates of attendance or completion issued;
  • The training type;
  • A copy of all written or recorded materials that comprise the training; and
  • The training provider's name.

The trainer must maintain all written questions received, and all written responses or guidance provided, for a period of two years after the date of response.

If using a webinar format for the training, an employer must maintain the following:

  • A copy of the webinar;
  • All written materials used by the trainer and all written questions submitted during the webinar; and
  • Document all written responses or guidance the trainer provided during the webinar.

Such records must be retained for a minimum of two years, and the employer must be able to provide copies upon request.

See +2 CCR § 11024.

Farm Labor Contractors

California law prohibits the issuance of a farm labor contractor license unless the applicant attests in writing that certain employees have received sexual harassment prevention and reporting training in accordance with requirements regarding substance, administration and record of the training. See +Cal Lab Code § 1684.

California requires that sexual harassment prevention training for each agriculture employee be in the language understood by that employee. +2017 Bill Text CA S.B. 295.

In addition, as part of the license renewal process, a licensee is required to provide the commissioner with:

  • A complete list of all materials or resources used to provide sexual harassment prevention training to his or her agricultural employees in the calendar year prior to the month the renewal application is submitted; and
  • The total number of agricultural employees trained in sexual harassment prevention in the calendar year prior to the month the renewal application is submitted.

These contractors must also demonstrate knowledge of a number of labor laws, including worker pesticide safety training.

Failure to comply with the law could result in the commissioner issuing citations and assessing civil penalties in the amount of $100 for each violation. When enforcing the law, the commissioner may take into consideration whether the violation was inadvertent, and may decide not to penalize an employer for a first violation that was due to a clerical error or inadvertent mistake.

Property Service Workers Protection Act

The Property Service Workers Protection Act extends biennial sexual harassment prevention training to janitorial employers. +Cal Labor Code § 1429.5.

The law applies to janitorial employers that employ at least one covered worker, including any employee, contractor or franchisee performing janitorial duties. The term janitor does not include any individual whose work duties are predominantly final cleanup of debris, grounds, and buildings near the completion of a construction or repair work project (e.g., street cleaners).

By January 1, 2019, the Division of Labor Standards Enforcement (DLSE) was to establish a biennial in-person sexual violence and harassment prevention training requirement for employees and employers. As of July 1, 2018, covered employers must register with the DLSE and provide employees with the Department of Fair Employment and Housing's pamphlet on sexual harassment. Until the DLSE establishes training requirements, employers may fulfill the training requirement by providing employees with the Department of Fair Employment and Housing's pamphlet on sexual harassment.

The DLSE released proposed regulations regarding sexual violence and harassment prevention training for property service workers on April 5, 2019. Title 8 of the California Code of Regulations, Sections 13820 - 13822. The public comment period closes on May 20, 2019.

The proposed regulations define covered worker to include full-time, part-time and temporary janitorial workers.

Training means in-person, interactive instruction, provided to a janitorial employee or supervisor by a trainer. Audio, video, webinar and e-Learning training methods may be used as supplemental tools in conjunction with in-person instruction but cannot solely fulfill the requirements. Interactive instruction includes questions that assess learning, skill-building activities that assess the employee's application and understanding of content learned, and hypothetical scenarios about sexual violence and harassment, each with one or more discussion questions.

Examples of interactive instruction include:

  • Pre- and post-training quizzes or tests;
  • Small group discussion questions;
  • Discussion questions that accompany hypothetical fact scenarios;
  • Use of brief scenarios discussed in small groups or by the entire group; or
  • Any other learning activity geared towards ensuring interactive participation as well as the ability to apply what is learned to the employee's work environment.

Under the proposed regulations, new supervisors and hires must be trained within six months of assuming employment or a supervisory position.

Under the proposed regulations, a covered successor employer that retains the same workforce as a predecessor employer for at least 120 days and maintains the employee's (i) original seniority date and (ii) wage rate equal or greater than provided by the predecessor employer, may use the retained employee's last documented date of required training to:

  • Determine the date of their next biennial training; and
  • Provide a copy of the employer's sexual harassment policy and reporting procedures.

The proposed regulations require that an employer maintain training records for three years. Records should include the names of employees and supervisors trained, the training date, the sign-in sheet, a copy of all certificates of attendance or completion issues, the type of training a copy of the training materials and the name of the training provider.

The proposed regulations require two-hour training that can be divided into segments (each segment must be a minimum of one hour).

The proposed regulations incorporate general content-based sexual harassment training requirements, as well as the identification of local, state and national resources for victims of unlawful sexual violence and harassment, including community-based resources such as rape crisis centers, counseling services and mental health supports, as well as details on internal reporting procedures.

Talent Agencies

Effective January 1, 2019, a talent agency licensed by the state must make available educational materials regarding sexual harassment prevention, retaliation and reporting resources to an adult artist. At a minimum, the materials must include the components specified in the Department of Fair Employment and Housing's Form 185.

The materials may be made available through:

  • Electronic transmission, including through an internet website;
  • Hard copy brochure; or
  • Through other reasonable means.

The resources must be provided to an adult artist within 90 days of agreeing to representation by the licensee or agency procurement of an engagement, meeting or interview, whichever comes first.

+2017 Bill Text CA A.B. 2338, adding Cal Lab Code § 1700.50 to Cal Lab Code Div. 2, Pt. 6, Ch. 4.

With respect to adult model artists, a licensee must make available educational materials regarding nutrition and eating disorders within 90 days of the date of agreeing to representation by the licensee or agency procurement of an engagement, meeting, or interview, whichever comes first.

+2017 Bill Text CA A.B. 2338, adding Cal Lab Code § 1700.51 to Cal Lab Code Div. 2, Pt. 6, Ch. 4.

With respect to minors, a licensee must request and retain a copy of the minor's entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor's services. Prior to obtaining an entertainment work permit to a minor, the parent or legal guardian or a minor between 14 to 17 hears of age, inclusive, must receive and complete training in sexual harassment prevention, retaliation and reporting resources. The training must consist of, at a minimum, the components specified in the Department of Fair Employment and Housing's Form 185.

+2017 Bill Text CA A.B. 2338, adding Cal Lab Code § 1700.52 to Cal Lab Code Div. 2, Pt. 6, Ch. 4.

The materials should be provided in a language understood by the artist. The licensee may comply with the language requirement either by:

  • Making the educational material available in the language; or
  • Having the educational materials presented for the artist in the language that he or she understands.

Beginning January 1, 2019, the licensee must keep records for three years confirming that it has made available educational materials regarding sexual harassment prevention, retaliation and reporting resources to all adult artists who have been signed for representation.

As part of the license renewal process, a licensee must confirm to the Labor Commissioner that it has and will continue to make available educational materials to adult artists. In addition, it is a violation for a licensee to fail to:

  • Ensure that educational materials are made available to an adult artist;
  • Make available educational materials in a language understood by the artist; and
  • Request and retain a minor's entertainment work permit.

Violations may result in a civil penalty of $100 per violation.

+2017 Bill Text CA A.B. 2338, adding Cal Lab Code §§ 1700.53, 1700.54 to Cal Lab Code Div. 2, Pt. 6, Ch. 4.

Licensed Professions

California law may require additional training regarding sexual harassment prevention and sexual abuse awareness. See, e.g., +2017 Bill Text CA A.B. 326; Talent Agencies; Janitorial Employers; Farm Labor Contractors. In addition, the state requires a variety of training subjects for particular licensed professions.

Safety Training

California law also mandates that all employers provide safety training to their employees. To this end, employers in California must create an Injury and Illness Prevention Program (IIPP) that contains a plan to keep employees free from work-related injuries and illnesses. Employers must provide training to employees about the IIPP when first implementing the IIPP, assigning a new employee to a position, transferring an existing employee to a new position, or making changes to workplace conditions. Employers should also endeavor to remind employees about workplace safety by providing additional, periodic safety training. Employers should document such training with sign-in sheets and certificates of completion. See +Cal Lab Code § 6401.7.

An employer also must train its employees about:

  • An Emergency Action Plan, which requires employers to maintain a plan for handling emergencies, including evacuating employees, providing employees with emergency medical attention, and reporting emergencies to employees and agencies. Training must be provided when the plan is established or changed and when new employees are hired. See +8 CCR § 3220.
  • A Fire Prevention Plan, which requires employers to be aware of fire hazards its employees face and to establish a plan for dealing with fires. Training may be provided during IIPP training or separately. See +8 CCR § 3221.
  • A Hazard Communication Program, which requires employers to communicate workplace hazards to employees and, for employers with at least 10 employees, to warn any person prior to their exposure to a chemical known by the California government to cause cancer, birth defects or other reproductive harm. Employers must train all new employees and provide refresher training after receiving new information on hazards and standards. See +8 CCR § 5194.
  • Repetitive Motion Injuries or Ergonomics, which requires employers to address workplace injuries caused by repetitive motions. Employers must provide initial training but need not provide refresher training. See +8 CCR § 5110.

Additional information regarding required safety training for particular occupations and industries is published by the California Department of Industrial Relations. See HR and Workplace Safety: California.

Heat Prevention Training

California employers also must provide training to employees and supervisors before they begin outside work. Training must include the following topics:

  • The environmental and personal risk factors for heat illness, as well as the added burden of heat load on the body caused by exertion, clothing and personal protective equipment;
  • The employer's procedures for complying with the requirements of this standard;
  • The importance of frequent consumption of small quantities of water, up to four cups per hour, when the work environment is hot and employees are likely to be sweating more than usual in the performance of their duties;
  • The importance of acclimatization;
  • The different types of heat illness and the common signs and symptoms of heat illness;
  • The importance to employees of immediately reporting to the employer, directly or through the employee's supervisor, symptoms or signs of heat illness in themselves, or in co-workers;
  • The employer's procedures for responding to symptoms of possible heat illness, including how emergency medical services will be provided should they become necessary;
  • The employer's procedures for contacting emergency medical services, and if necessary, for transporting employees to a point where they can be reached by an emergency medical service provider; and
  • The employer's procedures for ensuring that, in the event of an emergency, clear and precise directions to the work site can and will be provided as needed to emergency responders. These procedures shall include designating a person to be available to ensure that emergency procedures are invoked when appropriate.

Further, supervisors must also be trained on the following additional topics:

  • The procedures the supervisor is to follow to implement the applicable provisions in this section;
  • The procedures the supervisor is to follow when an employee exhibits symptoms consistent with possible heat illness, including emergency response procedures; and
  • How to monitor weather reports and how to respond to hot weather advisories.

See +8 CCR § 3395.

Discrimination Training

It is also highly recommended that employers train their supervisors to promptly report any incidents of discrimination to management. Employers can face significant liability where supervisors fail to take action in the face of discrimination. See Swinton v. Potomac Corp., +270 F.3d 794 (9th Cir. 2001). Moreover, employers in California may be sued for failing to "take all reasonable steps necessary to prevent discrimination and harassment from occurring," adding further impetus for employers to institute a comprehensive antidiscrimination training program. See +Cal Gov Code § 12940 (k).

Ergonomic Standard for Hotel Housekeepers

California has adopted an ergonomic standard applicable to hotel housekeepers. See HR and Workplace Safety: California; +8 CCR 3345.

An employer in the hotel and lodging industry must establish, implement and maintain an effective Musculoskeletal Injury Prevention Program (MIPP). The MIPP contains training requirements.

Training Components

An employer should train supervisors and housekeepers on safe workplace housecleaning practices and use of appropriate housekeeping tools or equipment. The training should be in a language easily understood by supervisors and employees.

Specifically, the training must include at least the following elements as applicable to the housekeeper's assignement:

  • The signs, symptoms and risk factors commonly associated with musculoskeletal injuries;
  • The elements of the employer's MIPP and how the written MIPP and relevant records will be made available to housekeepers;
  • The process for reporting safety and health concerns without fear of reprisal;
  • Body mechanics and safety practices including:
    • Identification of hazards at the workplace;
    • How those hazards are controlled during each housekeeping task;
    • The appropriate use of cleaning tools and equipment; and
    • The importance of following safe work practices and using appropriate tools and equipment to prevent injuries;
  • The importance of, and process for, early reporting of symptoms and injuries to the employer;
  • Practice using the types and models of equipment and tools that the housekeeper will be expected to use;
  • An opportunity for interactive questions and answers with a person knowledgeable about hotel housekeeping equipment and procedures; and
  • Training of supervisors on how to identify hazards, the employer's hazard correction procedures, how defective equipment can be identified and replaced, how to obtain additional equipment, how to evaluate the safety of housekeepers' work practices, and how to effectively communicate with housekeepers regarding any problems needing correction.

Frequency of Training

The training must be provided:

  • To all housekeepers and supervisors when the MIPP is first established;
  • To all new housekeepers and supervisors;
  • To all housekeepers given new job assignments for which training was not previously provided;
  • At least annually thereafter; and
  • When new equipment or work practices are introduced or whenever the employer becomes aware of a new or previously unrecognized hazard. The additional training may be limited to addressing the new equipment or work practices.

An employer must create and maintain training records in accordance with the state safety standards. +8 CCR 3203. The California Department of Industrial Relations recommends the use of a model notice by employers.

Human Trafficking Awareness

California law requires certain employers to post a notice regarding human trafficking identification, reporting and prevention. See Employee Communications: California. California law has been amended to require certain employers to complete human trafficking awareness training.

Covered employers for purposes of notice requirements include:

  • On-sale general public premises under the Alcoholic Beverage Control Act, +Cal Bus & Prof Code § 23000;
  • Adult or sexually oriented businesses;
  • Airports;
  • Intercity passenger rail or light rail stations;
  • Bus stations;
  • Truck stops, defined as a privately owned and operated facility that provides food, fuel, shower or other sanitary facilities, and lawful overnight truck parking;
  • Emergency rooms within general acute care hospitals;
  • Urgent care centers;
  • Farm labor contractors;
  • privately operated job recruitment centers;
  • Roadside res areas;
  • Businesses or establishments that offer massage or bodywork services for compensation; and
  • Hotels, motels and bed and breakfast inns, not including personal residences.

However, not all employers subject to notice-posting requirements must complete training.

The state encourages employers to provide longer, more frequent or more elaborate training and education on human trafficking awareness than is required by state law.

Transportation Employers

By January 1, 2021, certain employers covered by existing human trafficking prevention laws must provide training to new and existing employees who may interact with, or come into contact with, a victim of human trafficking or who are likely to receive in the course of their employment, a report from another employee about suspected human trafficking. +2017 Bill Text CA A.B. 2034, amending +Cal Civ Code § 52.6; see Employee Communications: California.

Covered employers for training purposes. Employers that operate intercity passenger rail or light rail stations and bus stations must comply with training requirements.

Length of training program. The program must consist of at least 20 minutes of training.

Covered employees. New and existing employees who:

  • May interact with, or come into contract with, a victim of human trafficking; or
  • Are likely to receive in the course of their employment, a report from another employee about suspected human trafficking.

Content of training. The training must include content regarding:

  • Recognizing the signs of human trafficking; and
  • How to report those signs to the appropriate law enforcement agency.

In addition, the training content must include:

  • The definition of human trafficking, including sex trafficking and labor trafficking;
  • Myths and misconceptions about human trafficking;
  • Physical and mental signs to be aware of that may indicate that human trafficking is occurring;
  • Guidance on how to identify individuals who are most at risk for human trafficking;
  • Guidance on how to report human trafficking, including:
    • National hotlines (1-888-373-7888 and text line 233733); and
    • Contact information for law enforcement agencies that an employee may use to make a confidential report; and
  • Protocols for reporting human trafficking when on the job.

The training may include information and material utilized in training by:

  • Santa Clara County Valley Transit Authority;
  • Private nonprofit organizations that represent the interests of human trafficking victims; and
  • The Department of Justice.

Failing to comply with the training requirements may result in a civil penalty of $500 for a first offense and $1,000 for each subsequent offense. An employer will be provided with a 30-day period to correct a violation.

Hotels and Motels

An amendment to the California Fair Employment and Housing Act (FEHA) requires specific employers to provide human trafficking awareness training by January 1, 2020. +2017 Bill Text CA S.B. 970, adding Cal Gov Code § 12950.3.

Covered employers for training purposes. Employers that operate hotels or motels must comply with training requirements. Bed and breakfast inns are not covered for training purposes.

Length of training program. The program must consist of at least 20 minutes of classroom or other effective interactive training and education regarding human trafficking awareness to covered employees.

Covered employees. New and existing employees who are likely to interact or come into contact with victims of human trafficking. Examples include an employee who:

  • Works in a reception area;
  • Performs housekeeping duties;
  • Helps customers in moving their possessions; or
  • Drives customers.

Timing of training. By January 1, 2020, training must be provided to existing covered employees who are employed as of July 1, 2019. For new hires that are covered under the law, within six month of beginning of employment.

An employer who has provided human trafficking awareness training and education to an employee on or before January 1, 2019, is not required to provide additional training to that employee.

After January 1, 2020, an employer must provide human trafficking awareness training:

  • To existing employees, once every two years; and
  • To new hires, within six months of hire.

Content of Training. The human trafficking awareness training must include:

  • The definition of human trafficking and commercial exploitation of children;
  • Guidance on how to identify individuals who are most at risk for human trafficking;
  • The difference between labor and sex trafficking specific to the hotel sector;
  • Guidance on the role of hospitality employees in reporting and responding to this issue;
  • The contact information of appropriate agencies, including the:
    • National Human Trafficking Hotline toll-free telephone number, 1-888-373-7888 and test line, 233733; and
    • Telephone numbers of the appropriate local law enforcement agencies.

The training may also include materials and information provided by:

  • The Department of Justice;
  • The Blue Campaign of the federal Department of Homeland Security; and
  • Private nonprofit organizations that represent the interests of victims of human trafficking.

Protection From Wildfire Smoke

An emergency regulation to protect outdoor workers from wildfire smoke became effective on July 29, 2019, and remains in effect through January 18, 2020, with two possible 90-day extensions. 8 CCR 5141.1; see HR and Workplace Safety: California.

The regulation applies to workplaces where:

  • The current Air Quality Index (AQI) for PM2.5 is 151 or greater, regardless of the AQI for other pollutants; and
  • The employer should reasonably anticipate that employees may be exposed to wildfire smoke.

Covered employers must establish and implement a system for communicating wildfire smoke hazards in a form readily understandable by all affected employees, including provisions designed to encourage employees to inform the employer of wildfire smoke hazards at the worksite without fear of reprisal. The system must include effective procedures for:

  • Informing employees of:
    • The current AQI for PM2.5; and
    • Available protective measures to reduce their wildfire smoke exposures; and
  • Encouraging employees to inform the employer of:
    • Worsening air quality; and
    • Any adverse symptoms that may be the result of wildfire smoke exposure (e.g., asthma attacks, difficulty breathing and chest pain).

An employer must provide employees with effective training and instruction on the following topics:

  • The health effects of wildfire smoke. An employer must provide information regarding particulate matter, which is the main harmful pollutant for people who are not very close to the fire. Particulate matter can irritate the lungs and cause persistent coughing, phlegm, wheezing, or difficulty breathing. Particulate matter can also cause more serious problems, such as reduced lung function, bronchitis, worsening of asthma, heart failure, and early death. People over 65 and people who already have heart and lung problems are the most likely to suffer from serious health effects. The smallest - and usually the most harmful - particulate matter is called PM2.5 because it has a diameter of 2.5 micrometers or smaller;
  • The right to obtain medical treatment without fear of reprisal. A employer must allow employees who show signs of injury or illness due to wildfire smoke exposure to seek medical treatment, and may not punish affected employees for seeking such treatment. Employers must also have effective provisions made in advance for prompt medical treatment of employees in the event of serious injury or illness caused by wildfire smoke exposure;
  • How employees can obtain the current AQI for PM2.5. Various government agencies monitor the air at locations throughout California and report the current AQI for those places. The AQI is a measurement of how polluted the air is. An AQI over 100 is unhealthy for sensitive people and an AQI over 150 is unhealthy for everyone. An employer must provide employees with the easiest way to find the current and forecasted AQ for PM2.5, which is to go to www.AirNow.gov and enter the zip code of the work location. The current AQI is also available from the US Forest Service at https://tools.airfire.org/ or a local air district, which can be located at www.arb.ca.gov/capcoa/dismap.htm. Employees who do not have access to the internet should be able to contact their employer for the current AQI. The EPA website www.enviroflash.info can transmit daily and forecasted AQIs by text or email for particular cities or zip codes;
  • The requirements in the wildfire smoke protection regulations. If employees may be exposed to wildfire smoke, then the employer is required to find out the current AQI applicable to the worksite. If the current AQI for PM2.5 is 151 or more, the employer is required to:
    • Check the current AQI before and periodically during each shift;
    • Provide training to employees;
    • Lower employee exposures; and
    • Provide respirators and encourage their use;
  • The employer's two-way communication system. An employer should train employees on its communication system in order to alert employees when the air quality is harmful and what protective measures are available to employees. Employees should also inform their employers if the employees notice the air quality worsening, or if they are suffering from any symptoms due to the air quality;
  • The employer's methods to protect employees from wildfire smoke. An employer should train employees on control systems at worksites, and take action to protect employees from PM2.5 when the current AQI for PM2.5 is 151 or greater. Examples of protective methods include:
    • Locating work in enclosed structures or vehicles where the air is filtered;
    • Changing procedures such as moving workers to a place with a lower current AQI for PM2.5;
    • Reducing work time in areas with unfiltered air;
    • Increasing rest time and frequency, and providing a rest area with filtered air; and
    • Reducing the physical intensity of the work to help lower the breathing and heart rates;
  • The importance, limitations and benefits of using a respirator when exposed to wildfire smoke. Employers must provide their workers with proper respirators for voluntary use. If the current AQI is greater than 500, then respirator use is required. Employers must train employees on the following precautions:
    • Employers must select respirators certified for protection against the specific air contaminants at the workplace. A label or statement of certification from National Institute for Occupational Safety and Health (NIOSH) should appear on the respirator or respirator packaging. Employees must be warned that surgical masks or items worn over the nose and mouth such as scarves, T-shirts, and bandannas will not provide protection against wildfire smoke. Instead, an N95 filtering facepiece respirator is the minimum level of protection for wildfire smoke;
    • Read and follow the manufacturer's instructions on the respirator's use, maintenance, cleaning and care, along with any warnings regarding the respirator's limitations. The manufacturer's instructions for medical evaluations, fit testing, and shaving should also be followed, although doing so is not required for voluntary use of filtering facepiece respirators;
    • Respirators are designed for certain contaminants and purposes. A respirator designed to filter particles will not protect employees against gases or vapors, and it will not supply oxygen;
    • Employees should keep track of their respirator so that they do not mistakenly use someone else's respirator; and
    • Employees who have a heart or lung problem should ask their doctor before using a respirator; and
  • How to properly put on, use and maintain the respirators provided by the employer. An employer should train employees, preferably by using visual means as well as descriptions, on how to get the most protection from a respirator (e.g., following the manufacturer's instructions, ensuring a tight seal around the face, properly maintaining respirator filters). Employees should be encouraged to get medical help if they experience difficulty breathing, dizziness or nausea.

8 CCR 5141.1, Appendix B.

Wage and Hour Considerations

When Training Must Be Paid

California has adopted the federal standards with regard to pay for training programs. Such standards state that training is not counted as hours worked and need not be paid if the attendance is voluntary on the part of the employee and all the following criteria are met:

  • Attendance is outside regular working hours;
  • Attendance is voluntary. Attendance is not voluntary if the employee is led to believe that present working conditions or the continuation of employment would be adversely affected by nonattendance;
  • The course, lecture or meeting is not directly related to the employee's job. Training is directly related to an employee's job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job or to a new or additional skill; and
  • The employee does not perform any productive work during such attendance.

See DLSE Enforcement Policies and Interpretations Manual § 46.6.5, citing 29 CFR §§ 785.27 - 785.31.

When the training is held during a meal break, it is still considered working time for which an employee must be paid, even if the employer provides food. Because such meal-time training amounts to working time, employers must provide their nonexempt employees with a separate meal break before or after the training.

Training and Exempt Employees

In California, many wage and hour exemptions require that employees exercise discretion and independent judgment. Employees in training for an exempt position must continue to be treated as nonexempt employees during the training process, as they do not exercise discretion and independent judgment during the training.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

EEO - Discrimination: California

Hours Worked: California

HR and Workplace Safety: California

California Department of Industrial Relations, Division of Labor Standards Enforcement Policies and Interpretations Manual