Hurricanes Harvey and Irma have lost their wind power, but residents of Houston and western Florida are still reeling from the effects of the storms—and they will for a long time. As residents of these communities assess the damage to their personal lives, what about their professional lives? What responsibility does an employer have to its employees, especially when employers find themselves unable to conduct business for extended periods of time?
Let’s face it: not many businesses pre-plan for hurricanes, tornadoes, blizzards, floods, earthquakes, or even widespread epidemics like the flu. When they strike, employers must be aware of their rights and responsibilities to employees. It’s important to know how state and federal guidelines address these situations.
Fair Labor Standards Act
The Fair Labor Standards Act requires employers to compensate nonexempt employees only for hours that the employees have actually worked. If an employer is unable to provide work, they have no responsibility to pay nonexempt employees. The exception to the rule (and there are always exceptions) is when a nonexempt employee works a specified number of hours for a specified salary, per an agreement between the employer and employee. Under these circumstances, the employer must pay the employee his or her full weekly salary for work performed during any week.
Exempt employees are entitled to their full salary if the workplace is closed or unable to reopen for less than a full work week due to disaster-related conditions. The employer may, however, require the employee to use paid time off during this period.
Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) plays a role under disaster situations. Employees affected by natural disaster are entitled to leave if they or a family member is impacted by a serious health condition due to the disaster. They are protected regardless if the disaster caused the condition or if the condition (such as refrigerated medicine during a power outage) is exacerbated by the disaster and requires time off to deal with it.
What if the business sustained so much damage that it just can’t reopen? That’s covered by (WARN) Act. This federal legislation requires employers with more than 100 workers to provide 60 days advance notice of covered mass layoffs and plant closings.
Of course, this is simply not possible when a natural disaster hits. Under these conditions, the employer must provide as much advance notice as is practical and include a statement for the reason for the reduced notice. The employer must also prove that the conditions for this exception have been met, in order to comply with the WARN Act.
Seek legal counsel before making any decisions that could impact your employees and their livelihoods. State and federal laws guide how employers must proceed, and knowing your rights and responsibilities is crucial in how you respond to disaster emergencies.
Above all, remember that your employees may be dealing with personal loss and property damage. No matter how difficult it is from a business standpoint, demonstrating sensitivity is the very best way to handle the aftermath of a natural disaster.