In the wake of Hurricane Sandy last Fall and the recent tornadoes in Oklahoma, forecasters are predicting an aggressive 2013 hurricane season, which started on June 1st. Employers should take time before the storm hits to review and update workplace pay and leave policies:
Fair Labor Standards Act ("FLSA")
The most frequent issues that arise from hurricanes and other natural disasters relate to the circumstances under which employers must pay employees during or after the storm.
Exempt Employees: Employees (such as executives, managers, and professionals) who are exempt from the FLSA's overtime requirements must generally be paid their regular salary regardless of the number of hours worked in a particular work week. One of the limited permissible deductions is the occasion when an employer remains open in the wake of a natural disaster but the employee chooses not to report to work – in which case full-day wage deductions are allowable. On the other hand, exempt employees who are ready and willing to work, but are prevented from working because of an employer's decision not to operate must be paid. If an employer is forced to cease operations for a full work week, however, exempt employees do not have to be paid in those weeks when they perform no work.
Non-Exempt Employees: Under the FLSA, employees who are paid on an hourly basis and who are entitled to overtime wages only have to be paid for actual time worked. Therefore, if an employee is unable or refuses to report to work because of a natural disaster, these employees do not have to be paid. Likewise, if an employer is unable to open its doors or operate, non-exempt employees do not have to be paid.
Working From Home: Exempt employees who work from home during or after a storm must be paid for that day. Non-exempt employees who work from home during or after a storm must also be paid, but only for actual time worked. For example, non-exempt employees should be paid for time spent responding to emails, participating in conference calls, or returning telephone calls. Employers should implement a timekeeping system for non-exempt employees who are unable to clock-in and out in the office.
Family and Medical Leave Act ("FMLA")
In addition to wage issues, employers must commonly address employee leave requests in the wake of a hurricane or other natural disaster. Employees requesting leave following a storm may qualify for leave under the FMLA – either for their own serious health conditions or to care for the serious health conditions of FMLA-covered family members. For example, employees may sustain injuries during or after the storm and need to take an FMLA-qualifying leave. Additionally, employees may qualify for FMLA leave to care for a child, spouse, or parent who suffers an injury caused by a hurricane or other natural disaster. All such leave requests should be addressed in the same manner as non-storm-related leave requests.
Americans With Disabilities Act ("ADA")
If employees sustain injuries resulting from a hurricane or other natural disaster, they may be entitled to protection under the ADA – especially in light of the expansive nature of medical conditions covered by the ADAAA amendments. Employers must continue to make provisions for reasonable accommodations to qualified employees with a disability after a storm, unless undue hardship is shown. In some instances, extended leave may constitute a reasonable accommodation; however, employers may also be required to consider accommodations other than leave.
Inclement Weather Policy
An effective inclement weather policy will aid employers in addressing these and other workplace issues that arise before, during, and after a natural disaster.