September is National Preparedness month, seemingly just in time for Hurricane Florence which is currently threatening to bring flash flooding and destructive winds to much of the North and South Carolina coastline over the next several days.
The U.S. Department of Labor (DOL) assists in recovery efforts in the communities affected by severe storms, floods, and other disasters, as well as offers income and job assistance. For general questions and assistance, please contact DOL's National Contact Center at 1-866-487-2365.
As an employer, you probably have questions on how to best support your employees during times of natural disasters. The following briefly cover different questions and areas of concern that commonly arise during times of natural disasters.
Natural Disasters and the FMLA
Can your employees be eligible for leave during a natural disaster?
Natural disasters—like hurricanes, tornados, or wildfires—can cause a host of complications and questions for employers. For example, how should you pay employees if your operations are suspended? Or what health benefits or other benefits should be offered? And what is an employer’s obligation when it comes to FMLA leave during a natural disaster?
Under federal law, employees may be eligible for a leave of absence to care for their own serious health condition or that of a family member. Therefore, if an employee or their family member is injured during a natural disaster, the employer must comply with provisions set by the Family and Medical Leave Act (FMLA). There are also state family and medical leave laws which can be enforced, so employers must ensure compliance with those as well.
The FMLA does not require employers to give employees time off to attend to personal matters that can arise from a natural disaster, such as cleaning a flooded basement, salvaging belongings, or searching for missing relatives. It should be noted that employers can always voluntarily provide leave in such situations in accordance to their personnel policies.
However, if an employee suffers a physical or mental illness and/or injury that meets the definitions of a “serious health condition” and makes the employee unable to perform their job, then that employee would be qualified for FMLA leave. Similarly, if an employee has to take care of a spouse, child, or parent with a serious health condition, that employee would also qualify for FMLA leave.
Here are some examples to illustrate this:
- Jane Smith has a chronic condition of high blood pressure, and when her home flooded in the hurricane her blood pressure soared even higher and left her unable to perform her work. Jane qualifies for FMLA leave.
- John Walker’s mother has diabetes, and the recent earthquake left her neighborhood without power. This means John’s mother has nowhere to store her medication, because it must be refrigerated, and so John is assisting her by keeping the medication in his home and helping administer it to her when needed. John qualifies for FMLA leave.
- Susie Roberts was diagnosed with post-traumatic stress disorder when she returned from active duty overseas. She has performed her work duties well, and has never needed any FMLA leave or an ADA accommodation. However, ever since Susie and her family had to be evacuated due to a wildfire her performance has been slipping, even though it has been months since the evacuations. Susie is not only eligible for FMLA leave, but her PTSD may be at a high enough level to be considered a disability, leaving her employer with obligations under the Americans with Disabilities Act (ADA).
Physical and/or emotional injuries can arise weeks or even months after a natural disaster strikes. Employers must diligently be aware of their employees and any signs their employees might be suffering. All front-line supervisors and those directly supervising employees need to be trained in both FMLA and ADA awareness and proper procedures.
When an employee requests leave as a result of a natural disaster, it is important for employers to gather as much information as possible from the employee in order to determine if the requested absence would qualify as protected leave. If in doubt, it is suggested that employers default to providing the FMLA paperwork and let the employee provide all the necessary information to support FMLA leave.
Employers should also ensure that medical certification is sufficient to cover the absence requested. If more information is required, employers should always go directly to the employee.
Poms & Associates’ has multiple resources dealing with various FMLA-related topics. To access them, please click here.
Wage and Hour Concerns During Weather-Related Emergencies
What happens if the nasty weather or a natural disaster forces an employer to close the doors to the business temporarily or prohibits employees from showing up to work? What are an employer’s obligations to continue paying the employees when there is no work being performed?
Well, the simple answer would be; it depends. It depends on quite a lot of different scenarios, for example:
- The current leave and benefits plan used by the employer
- Whether or not the employees are exempt or non-exempt or a mix of both
- If the employees have accrued leave
- Personal preferences of the organization
The (Federal) Fair Labor Standards Act (FLSA) is the law that governs employer requirements in terms of wages and work hours. A natural disaster does give employers a waiver from the requirements of the FLSA. However, the FLSA will guide employers on what is required (based on an employee’s exempt or non-exempt classification).
Generally speaking, there is no legal obligation under state or federal law to pay non-exempt employees for time not worked. An employer should consult their personal policy to determine if hourly non-exempt employees are required to use his or her vacation days.
Keep in mind, however, if non-exempt employees do any work remotely (from home or elsewhere) when the company is officially closed, they must be paid for the hours worked. There is, however, an exception to the above, if an employer has an employee who is classified as non-exempt but who is paid a fixed salary for fluctuating workweeks. In this case, if the employee does any work during the week, the employee must be paid their salary.
As for salaried exempt employees, payment depends on many different factors, like if the employee worked for a full week or only part of the week, plus many other varying factors, like an organization’s current PTO policy. For example, if state law and the company’s policy permits, an employer theoretically could allow an employee to carry a negative vacation balance and then recoup the time later. To read more about specific circumstances and laws surrounding employee pay, please click here, here, or here.
Deductions may not be made for times when work is not available. In other words, if the company closes operations for a day or two (yet the employee is able and willing to work), they must be paid. The opposite would be true if the company were to close for a couple of days but the employee is not able or willing to work. In that instance, if the exempt employee is absent for one or more full days dictated by personal reasons, deductions may be made. Employers should always remember that if an exempt employee performs any work in a day, even answering one email or call (something that may seem rather insignificant), they must be paid their full salary.
If a company has employees covered under a collective bargaining agreement (CBA), it is important to review the CBA in order to determine if there are provisions requiring employees to be paid (even if the company is not required to pay under the FLSA).
While it is always important and necessary to follow state and federal laws regarding payroll all of the time, in emergency and extenuating circumstances many organizations find it valuable to offer affected employees paid or unpaid leave to assist in recovery or relief efforts. Some organizations will allow employees with PTO to go into negative paid time off, other organizations will simply allow employees in extreme and/or emergency circumstances to utilize unpaid leave after they have ran out of PTO. Other organizations have created leave donation programs, which allow employees to donate their personal PTO days to a coworker in need.
Employers will never get in trouble by offering employees above and beyond paid or unpaid time off to deal with emergencies, and many employers find any loss in wages paid or any temporary dip in productivity from these employees is made up by the increase in workplace morale and overall workplace productivity.
For example, many employers who had employees in Texas and Louisiana who were affected by the enormous toll Hurricane Harvey took found it beneficial to continue to pay wages (full or partial) for a certain set time until government assistance* could kick in for those employees. This demonstrated support of employees by their employer, which helped to increase employee loyalty, morale, and the employer’s reputation. If this road is to be taken it is important to document all voluntary payment of wages (full and partial) and to still treat them as wages for tax purposes. The key to this, however, is to apply it evenly across the all employees. Consistency will help you avoid any costly discrimination lawsuits, or at the very least, a grumbling and disgruntled workforce.
Employees That Are Called to Duty
In the aftermath of a natural disaster, employees who are National Guard members or volunteer emergency responders may be called to assist in recover and rescue efforts. Under federal law, the Uniformed Services Employment & Reemployment Rights Act of 1994 (USERRA), employers have an obligation to accommodate employees who must take a leave of absence to fulfill their uniformed services. USERRA's definition of “uniformed service” is broad and covers many types, both voluntary and involuntary.
Though employers are not required to pay those who take leave under USERRA (unless the company has a CBA or policy stating otherwise), they are required to allow the employee to take leave.
Employers should familiarize themselves with USERRA. The Department of Labor (DOL) has created a fact sheet that outlines its provisions of the law and can be found here: DOL USERRA FACTSHEET
Additionally, many state laws provide leave provisions for employees who also serve as volunteer emergency responders. Employers should determine if there are state laws that govern their particular instances of required leave.
It is possible that employees who are unable to work because of a natural disaster may qualify to receive unemployment insurance benefits. Typically, if the employee has earned the appropriate level of wages during their “base period,” they would qualify. The definition of base period varies by state.
Health Benefit Continuation
There may be provisions within a company’s health benefit plan documents that require employees to actively be at work to be covered under the health plan. Once the outlined plan document period expires, an employee’s coverage would terminate, and COBRA notices required to be sent. Self-insured plans and carriers may waive this provision.
Assiting Employees Affted By a Natural Disaster
Most opportunities helping natural-disaster affected employees are done at the employer’s discretion. Programs (such as leave donation or charitable trust set-up) are options an employer may wish to consider. In any case, such programs should be properly set up and administered (including tax implications).
A natural disaster can create a variety of issues for both employers and employees. Everyone must work together, as business and lives are rebuilt through recovery efforts.
For additional information about this blog, please contact your Poms & Associates broker, or send your question to us through “Ask Poms.”
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When in doubt, always seek legal counsel or assistance from State, Federal, or International governmental resources to make sure your legal interpretation and decisions are correct. The information on this site is for guidance, ideas, and assistance only.