If an employer fails to give any notice at all on the basis that the layoff or closure is due to a “physical calamity,” will that employer be shielded from liability?

Only if the employer can prove that the claimed physical calamity actually meets the definition of a “physical calamity.” The Executive Order does not affect the California WARN Act’s so-called “physical calamity” exemption. Lab. Code § 1401(c). That exemption permits an employer to avoid providing any notice altogether. To avail itself of the exemption, an employer would need to prove that the COVID-19 pandemic is a “physical calamity.” However, there are currently no precedential cases interpreting what constitutes a “physical calamity” for purposes of the California WARN Act.

By contrast, the Executive Order temporarily suspends the usual 60-day requirement for those employers that provide notice to affected employees and fulfills the Executive Order’s other conditions. The employer would not have to demonstrate that the COVID-19 pandemic is a “physical calamity” if they follow the conditions of the Executive Order.

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