As wildfires rage in California and we head into hurricane season, employers might be wondering about their obligations to employees in the case of natural disasters. Should they provide time off? Should they pay employees for days missed due to a hurricane or allow employees to work remotely?
We’re going to run through basic scenarios and helpful information to guide you in such an emergency.
Paid Time Off
In the case of a natural disaster, an employer’s payment duties for exempt & non-exempt employees are quite different. If an employer has to close their business in the middle of the workweek, their exempt employees (who are paid on a salary basis) must be paid the entire weekly salary. This is due to the Fair Labor Standards Act (FLSA). However, if a business owner cannot provide work to a non-exempt hourly worker during the disaster, such an employee can only get paid for the actual time they have worked; they are not covered for such paid time off under FLSA.
Employers do not have to automatically approve requests for leave by employees for natural disasters. There is a BIG “however”—and that’s the Family Medical Leave Act (FMLA). Under the act, employees (both exempt and non-exempt) and their close family members may be eligible for time off due to a host of situations. These situations include mental distress, of the type some people may experience due to a natural disaster.
You also might get requests from your employees to work remotely during/after a natural disaster. Some of these might be covered via the FMLA, but regardless, you may want to have some sort of accurate “time clock” option in place for them to remotely check into. If you don’t have such a time tracker in place and your employee works remotely, that could expose one to liability under a host of different state & local laws, as well as FLSA.
Another topic that could possibly arise in a natural disaster is volunteer work. In this instance, you may have employees willing to “volunteer” their time with clean-up (or anything that helps get you back online) at the workplace. Keep in mind, even volunteer work could make you liable to compensate your employee if he or she decides to do so.
Clean-up At The Workplace
What if you are simply having your employees help out with clean-up and recovery at the worksite as part of their job duties? The work they do might not be a part of their official job description…but they still must be paid their normal wage for it. It’s also important that you (the employer) ensure that the recovery work you have them perform fits the Occupational Safety and Health Administration (OSHA) guidelines for a safe workspace.
When An Employee Is A Relief Worker
Under 1994’s Uniformed Services Employment and Reemployment Rights Act (USERRA), some employees may have workplace protections in the event they are called to serve as relief workers. While this law was initially created to only cover those in the military, 2002’s Bioterrorism Preparedness and Response Act extended it to cover select groups of federal emergency workers called to assist with national disasters.
USERRA protects qualifying relief workers by asserting their right to reemployment after their relief duties are over, as well as continuing their benefits while they are on leave. In order to establish eligibility, the employee must have a civilian job, engage in relief service that does not cumulatively exceed five years, and provide the employer with prior written notice. In cases of extreme emergency, the prior written notice requirement can be waived.
So that’s our look at the basics of employer obligations to employees in the event of a natural disaster. In addition to the various employment laws covered here, there might many additional ones for your specific state and locality. Consulting your Labor Department, human resources professional, or lawyer is crucial if you have any questions!
Disclaimer: This article is not meant to be legal advice. If you have any questions, please consult an employment lawyer or accountant.
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