Thursday, August 31, 2017

How Can Employers Better Prepare for Natural Disasters?

Hurricane Harvey has caused unprecedented damage in Texas, resulting in thousands of companies temporarily (or perhaps even permanently) closing down operations. While the main focus is—and should be—the safety of everyone affected by Harvey, this natural disaster brings with it a host of legal and practical issues for employers. Even if a company is not in the storm’s path, it should consider using Harvey as an opportunity to think through some of the preparations that can make disasters a bit easier to manage. Below are a few common questions employers may be faced with in an emergency.

Do I have to pay employees while operations are closed?
Generally, employers only have to pay non-exempt employees for time actually worked. An exception to this general rule exists, however, when a non-exempt employee receives a fixed salary for fluctuating workweeks. When an employer and non-exempt employee have agreed to have the employee work an unspecified number of hours for a specified salary, the employee must be paid his/her full weekly salary if any work was performed in the week.

For exempt employees, the analysis is different. When an employer shuts down because of weather conditions for less than a full work week, exempt employees must be paid their full salary if they performed work in the week. However, exempt employees may be required to use paid time off for their absences (assuming they have such time and the employer’s policy requires usage). If, on the other hand, an employee does not have any available leave time, the employee is entitled to his or her full salary for the week if the employer decides to close operations. If an employer closes its operations for one or more full weeks, it may lawfully furlough exempt employees for those weeks and not pay them so long as they perform no work.

What if employees can work remotely?
Because non-exempt employees must be compensated for all time spent working, employers must pay non-exempt employees for performing any work remotely, even if the employee did not have express permission to work from home. If this is a concern, employers should clearly communicate and strictly enforce a policy that explains what constitutes compensable time for non-exempt employees, states whether approval is required to perform certain work and requires employees to accurately record all time worked. As for exempt employees, they should also be compensated for the work they perform remotely. If they only work a partial day, however, they can typically be directed to use appropriate leave time for the balance of the time under the circumstances explained above.

Can I choose to pay employees even if they aren’t working?
Yes. Employers can be more generous than the law requires and there reasons to consider continuing pay in some situations. Continuing pay for some period of time can improve morale, foster loyalty, and enhance an employer’s reputation. Employers can either continue pay with no repayment requirement or can consider salary advances. If an employer offers a salary advance, it is important to properly document the pay advancements and future repayment obligations, including any authorized payroll deductions for repayment purposes, to avoid future disputes. Any voluntary wage payments should be treated as wages for tax purposes.

Can employees take leave under the Family Medical Leave Act (FMLA) or as a reasonable accommodation under the Americans with Disabilities Act (ADA)?
Employees may, under some circumstances, be entitled to FMLA leave or leave as a reasonable accommodation under the ADA to deal with disaster-related absences. If, for example, an employee or his/her family member suffered a serious injury or illness as a result of the disaster, the employee would, if FMLA eligible, be entitled to FMLA leave. Also, the ADA requires employers to provide reasonable accommodations to disabled individuals. Employees who are physically or emotionally (e.g., post-traumatic stress disorder) injured by the impact of a natural disaster may, if their condition is a legal “disability,” seek various accommodations at work, and such requests should be taken seriously. Reasonable accommodations must be granted for a qualified disabled employee unless the accommodation at issue poses an undue hardship.

Can employees in the military take leave for emergency relief efforts?
Employees in certain branches of the military (such as the National Guard or a Reserve unit) may be entitled to protected leave time if called up to assist with emergency relief efforts connected to a natural disaster. In this situation, the Uniformed Services Employment and Reemployment Rights Act (USERRA) may apply. USERRA provides for lengthy periods of job-protected leave with reinstatement and other rights. USERRA also permits an employee to give notice of the need for USERRA leave on short notice in the event of a short-term notice call up.

Does the Worker Adjustment and Retraining Notification (WARN) Act apply?
If an employer decides to permanently close a facility or conduct a mass layoff as a result of a natural disaster, advance notice under the federal WARN Act or a similar state law may be required in some circumstances. The federal WARN Act covers employers with 100 or more employees and requires 60 days advance notice for a “plant closing” or “mass layoff” as defined by WARN. The federal WARN Act provides a limited exception if a natural disaster was a direct cause of the job losses or is considered an “unforeseeable business circumstance.” However, employers are not relieved completely of their WARN notice obligations even if these exceptions are found to apply. They must still give “as much notice as is practicable.”

Responding to an emergency situation like the one presented by Hurricane Harvey can be a daunting task. It is important, however, to always keep in mind the complex web of laws and regulations that govern employment relationships. We hope this post allows employers to be thinking about these issues in advance so they can respond quickly and effectively should a natural disaster strike.


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