Weathering The Storm: Employment Law Issues In Natural Disasters
Published by Eric A. Welter and Sarah Tudor Glaser on October 26, 2018
Hurricane Florence had us thinking – what obligations do employers have when natural disaster strikes? What rights do employees have? Here is a roundup of some important considerations.
Below is a roundup of some important considerations for employers facing a natural disaster. The legal issues identified below and all important, and may all come into play at some point or another. In addition to the legal considerations below, consider also our responsibility as humans to care and be compassionate towards others. A natural disaster is easy for no one, and to the extent we can help others out beyond what the law requires of us, we are better for having done it.
Fair Labor Standards Act—-Issues Related to Paying Employees
The FLSA requires employers to pay nonexempt employees who are paid hourly only for hours that the employees have actually worked. Consider allowing these employees to use any accrued leave they have available to make up for the missed work.
For exempt employees, an employer must pay the employee’s full salary if the worksite is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. In this instance, an employer may require exempt employees to use allowed leave for this time.
If the worksite is not closed or the employer is open for business, but an exempt employee chooses to stay home anyways, an employer may consider this an absence for personal reasons (same with an absence caused by transportation difficulties experienced during weather emergencies). An employer may place an exempt employee on leave without pay (or require the employee to use accrued vacation time) for the full day that he or she fails to report to work and if the employee is absent for more than a full day, the employer may take deductions from the employee’s salary for the absence. Consider, however, whether the circumstances truly warrant this.
On call and Waiting Time.
An employee who is required to remain on call or wait should be paid for all of their time.
Worker Adjustment and Retraining Notification Act (WARN).
The WARN Act, a federal law, imposes notice requirements on employers with 100+ employees for plant closings or layoffs. There is an exception where the closing or layoff is a direct result of a natural disaster though, and the employer must just give as much notice possible.
After The Disaster
Family and Medical Leave Act (FMLA).
Employees of covered employers affected by a natural disaster are entitled to leave under the FMLA for their own serious health condition or the serious health condition of a family member caused by the disaster.
Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA prohibits discharging, denying initial employment, denying promotion or denying any benefit of employment because of a person’s membership, performance of uniformed service or obligation to perform uniformed service.
Americans with Disabilities Act (ADA).
Under the ADA, employees who are physically or emotionally injured may be entitled to reasonable accommodation by the employer.
Occupational Safety and Health Act (OSHA).
Employers have a general duty under OSHA to ensure that their employees work in a safe and healthy workplace. Consider all of the safety concerns of having workers on the premises during a natural disaster and ensure they are properly mitigated. Employees who do not feel safe at work may consider filing a complaint with OSHA.
There are many employment law considerations during a natural disaster, including when, how, and if an employee should come to work and what rights they have while picking up the pieces. The Federal laws listed above may all come into play, and there may also be state laws implicated.Topics: ADA, Americans with Disabilities Act, Fair Labor Standards Act, Fair Labor Standards Act (FLSA), Family and Medical Leave Act, FLSA, FMLA, Occupational Safety and Health Act, On call and Waiting Time, OSHA, Uniformed Services Employment and Reemployment Rights Act, USERRA, WARN, Worker Adjustment and Retraining Notification Act, Workplace Safety