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Employer Obligations and Natural Disasters

Poms & Associates’ thoughts and prayers are with all those in Texas and Louisiana who are in the path of Hurricane Harvey, or suffering in its aftermath.

If you or your organization is interested in providing assistance to those affected by Hurricane Harvey, please donate to on-the-ground local organizations like:

News Alert August 30, 2017: The U.S. Department of Labor issued a compliance guidance for employee benefit plans impacted by Hurricane Harvey, stating “Our deepest and most immediate concern is for those who are in harm’s way, and for the first responders who will work tirelessly to help those affected,” U.S. Secretary of Labor Alexander Acosta goes on to say, “We also realize that employers and employees impacted by Hurricane Harvey will need assistance in dealing with employee benefits issues arising from disruptions in banking and payroll processing.” To read the guidance in its entirety, please click here.

Natural Disasters and the FMLA

Can your employees be eligible for leave during a natural disaster?

Natural disasters—like hurricanes, tornadoes, 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?

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

So 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

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 personnel policy to determine if hourly non-exempt employees are required to use his or her vacation days.

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, To read more about specific circumstances and laws surrounding employee pay, please click here, here, or here.

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 have employees in Texas and Louisiana who have been or will be affected by the enormous toll Hurricane Harvey is taking might find 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 would demonstrate support of employees by their employer, which would 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.

*More information about disaster government assistance can be found here and here.

Disclaimer—Please Note: This blog/material is provided for general informational purposes only and is not a substitute for legal advice particular to your situation. Poms & Associates, Insurance Brokers Inc. and the author expressly disclaim all liability relating to actions taken or not taken based solely on the content of this information.

The author makes every effort to offer accurate and practical Human Resource management, employer, and workplace advice, both on this website and linked to from this website, but she is not an attorney. The content on this site, while authoritative, is not guaranteed for accuracy and legality, and is not to be construed as legal advice. Additionally, employment laws and regulations vary from state to state and country to country, so this site cannot be definitive on all of them in your workspace.

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.