Employers and employees are often caught off guard by the devastation and uncertainty created by natural disasters. When emergencies arise from such wildfires, global pandemics, hurricanes, earthquakes, tornadoes, and flooding, employers are often faced with employment-related concerns, and it is imperative for employers to be as prepared as possible in the event an emergency arises. This article touches on some of the most important concerns that employers should keep in mind if ever faced with a natural or other disaster, including (but not limited to) wage and hour implications, potential payroll relays, leaves of absence, notifying employees of mass layoffs, unemployment benefits, and safety and retaliation concerns, and modes of communication to employees.
Wage & hour implications:
- Under the FLSA, non-exempt workers must be paid only for the time they work, and therefore, employers need not compensate non-exempt employees who are not working because of an emergency. Note that it generally does not matter whether the absence is based on the employer’s decision to close or the employee’s decision to stay at home or evacuate. It is also important to note that non-exempt employees must be paid for performing any work remotely, even if the employee did not have express permission to work from home. Accordingly, employers should ensure that they have a clear and enforceable time and attendance policy that, among other things, requires non-exempt employees to accurately record all time worked.
- On the other hand, when an employer shuts down its operations because of adverse weather or other disaster for less than a full workweek, exempt employees must be paid their full salary. This rule also applies if exempt employees work only part of a day. Keep in mind that if an employer deducts from the employee’s salary in such situations, it risks losing the exemption applicable to that employee. Also note that, generally speaking, exempt employees may be required to use accrued leave or vacation time for their absences, including if the worksite is closed, and employers are able to direct exempt employees to take paid time off for the closure, pursuant to the employer’s established vacation or leave policy. Employers should keep this in mind when updating and refreshing its vacation and leave policies.
Potential Payroll Delays:
- Sometimes a natural or other disaster can cause a delay in an employer’s processing of employees’ wage payments. New York employers are required to give notice to employees for changes in their pay rate and/or payday. Notice of any delays should be made in writing as soon as practicable.
- This is often an unintentional result of a natural of other disaster, but employers should ensure that they keep open and ongoing communications with its employees about wages, scheduling, and related matters.
Leaves of Absence:
- Employees may need to take leave from work to deal with certain unforeseen circumstances that a natural disaster could cause. Generally speaking, the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, but, employees who have suffered a serious injury or illness resulting from the disaster, or who have a family member who did, may be entitled to leave under the federal Family and Medical Leave Act (FMLA).
Notifying Employees of Mass Layoffs:
- Employers that decide to close a facility or implement a mass layoff due to the effects of a natural disaster must evaluate whether a notice is required under the federal Worker Adjustment and Retraining Notification Act (WARN).
- The WARN Act requires a covered employer, i.e., 100 or more employees, to give 60 days’ notice prior to a mass layoff. A mass layoff occurs when either of the following suffers a job loss: (a) 500 or more full-time employees at a facility; or (b) 50 or more full-time employees at a facility constituting at least 33% of the workforce. A job loss includes a layoff of six months or more but does not include resignations or terminations for cause.
- When required, WARN notice must be provided to affected nonunion employees, the representatives of affected unionized employees, the state’s dislocated worker unit, and the local government where the closing or layoff is to occur.
- Note that a natural or other disaster is not considered a justifiable delay in providing WARN notice, and if necessary, they must give “as much notice as is practicable” and must state why they were unable to give notice earlier.
Unemployment Benefits:
- Employees who are displaced from their positions due to a natural or other disaster may be eligible for unemployment compensation from the relevant state agency, and if ineligible for state assistance, the employee may be eligible for such Disaster Unemployment Assistance (DUA).
Safety & Retaliation Concerns:
- Under the federal Occupational Health and Safety Act, employers have a legal duty at all times to provide employees with a safe workplace, free of known health and safety hazards, and depending on the business, additional industry-specific regulations may apply. Employers should conduct a workplace safety analysis to consider any and all post-disaster recovery issues. Note that OSHA publishes fact sheets on disaster recovery which addresses topics such as flood and cleanup hazards, fungi, falls, chainsaws, asbestos, and electrical wires.
Communicating to Employees:
- Employers should establish a command center to serve as the central source for decision-making and communication and should also consider having a second alternative location in the case of a widespread event if possible.
- Employers should ensure that employee contact information is up-to-date and that employees know how to get information from the employer in an emergency. This could include distributing relevant information in advance of inclement weather or other catastrophic event for employees to store at home, such as information about company policies and general preparedness, and ensure that there are sufficient modes of satisfaction for contact, such as an email or text alert system.
If you have any questions about the subject of this article and its implications for your business, please contact Forework.