In the preparation for and aftermath of any natural disaster, employers are often faced with questions from employees and clients regarding their plans. Natural disasters affect employers and employees year-round through hurricanes, tornadoes, floods, fires, blizzards and severe storms. With Hurricane Dorian looming in the Atlantic, the topic is top of mind for many right now. Here are four of the biggest employment issues that you may face:
1. Employer action plan:
Employers should communicate their disaster recovery plan. This should include information regarding the following:
Have an established remote working policy for employees working from home in who ordinarily do not.
Update employees’ contact information (ensure a number to text or email) so that you can contact them if necessary.
Pay and PTO policies during a natural disaster.
Identify essential personnel that would be required work during a natural disaster. Have essential personnel sign a policy acknowledging consequences of an absence during a natural disaster event.
Establish a policy on whether your business will accommodate household members of employees who are required to work during the disaster (especially if schools are closed).
Have manual checks available for vendors and payroll if necessary.
2. On-call employee pay during a natural disaster.
Per the Department of Labor (DOL), “an employee who is required to remain on his or her employer’s premises or so close thereto that he or she cannot use the time effectively for his or her own purposes is working while on-call.” Employers are not required to pay employees who are at home and available to the employer but able to spend that time for their own purposes. On the other hand, under the FLSA, if an employer has closed an office due to a natural disaster and the employer requires an employee to be on-call such that the employee cannot effectively use the time for his or her own purposes, then the employer must pay the employee for the on-call time. The DOL offers this resource to assess how to pay on-call employees.
3. Employee pay when the office is closed or inaccessible due to a natural disaster.
The DOL has the following fact sheet outlining pay questions in a disaster. In summary, the Fair Labor Standards Act (FLSA) requires that employers pay their exempt employees during any closure of less than a week. However, private employers may require employees to use their paid vacation or paid time off, as long as the employee receives his or her full salary for the week and was notified of these policies in advance. If the office is open but as a result of the natural disaster the employee cannot work, then the employer does not have to pay the exempt employee's salary for the absence.
Conversely, employers do not have to pay a nonexempt employee for days the employee does not perform any actual work, regardless of whether the cause of nonperformance was because the business was closed due to a natural disaster. However, if the nonexempt employee is paid on a fluctuating workweek basis, then the employee must be paid the full weekly salary for any week during which any work is performed, even if they miss some work due to the natural disaster.
4. FMLA leave during a natural disaster.
If an employer's business is closed for a week or more due to the natural disaster, then the days the business is closed would not count towards an employee's FMLA leave. But if the business is closed for less than a week and an employee is on FMLA leave, then the entire week would count against the employee's FMLA leave. However, if the employee is taking intermittent FMLA leave, then only the days that a) the business is closed and b) the employee was expected to work can be counted against the employee's FMLA leave.
Employees affected by a natural disaster may be entitled to leave under the FMLA for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse, or parent with a serious health condition may also be entitled to leave under the FMLA. Some examples of storm related issues might include absences caused by an employee's need to care for a family member who requires refrigerated medicine or medical equipment not operating because of a power outage.
This firm and its clients have weathered many storms together. If you have any questions or would like to prepare these policies, please contact me.