From the buried streets caused by last week’s “Bomb Cyclone,” to our lasting memories and ramifications of Hurricanes Harvey and Irma,  we are reminded that mother nature’s fury packs a punch nationwide. Beyond employer desire to support and comfort their workforce, there are legal obligations which are easily overlooked when emergencies strike. Frequently employers are forced to navigate gaps between company policies and legal obligations in the face of crisis.

Wage and Hour

Wage and hour laws are particularly confusing for employers in the wake of a natural disaster. Pay calculations when an emergency presents itself will differ based upon the employee in question. Employers are likely required to pay some employees but not all of their workforce when natural disaster strikes.

Pursuant to the Fair Labor Standards Act (FLSA) and Department of Labor, employers are only required to pay non-exempt employees for hours worked. It surprises many lawyers to learn that regardless of whether an employer closes the workplace due to a storm or an employee decides to stay home, employers are only required to pay non-exempt employees for hours worked. In some states, in certain circumstances on-call time is considered “hours worked” and therefore employers need to consider whether passive time would need to be compensated based upon specific circumstances. Generally, whether or not an employer can require a non-exempt employee to use vacation days should they decide to stay home is a matter of company policy.

Beyond the hours worked requirements for non-exempt employees, there are specific obligations for employers depending upon the state, in certain industries to pay non-exempt employees who report to work and are then dismissed early.  Restauranteurs, beauty shops owners, retailers and others are required to pay non-exempt employees to one degree or another if they come to work, regardless of how long they are asked to stay and work.

The answer as to whether exempt employees need to be paid in the event of a closure lies in how long the closure lasts.  For example, in some states if a business is closed for less than one week, they are required to pay their exempt employees for the pendency of the closure.  While under federal law and some state law, employers can require exempt employees to use vacation days or other paid time off during the closure, Connecticut law for example, prohibits employers from deducting paid time off in the event of a closure. Should the worksite closure last a week or more, employers are not obligated to pay exempt employees for that time.

Regardless of exempt versus non-exempt status, if employers fail to notify employees of a closure prior to their arrival at work after a natural disaster, most state laws require employees to be a paid for a minimum amount of time (New York (minimum of four hours), New Jersey  (minimum of one hour), California, Connecticut, Massachusetts, New Hampshire, Oregon and Rhode Island, and the District of Columbia). 

Status of a given employee also has no effect when dealing with attendance when commuting in inclement weather.  As long as an employee is not a motor carrier employee, the employer can discipline or terminate based upon refusal or failure to commute to work on a given day, regardless of weather conditions.

Remote Work

Similar to the wage and hour considerations in the event of a closure, pay for remote work also differs based upon the exempt/non-exempt status of a given employee.  The general rule is that any work performed by an employee, even if it is undertaken off of an employer’s premise needs to be compensated. Non-exempt employees must be compensated for remote work even if they failed to follow protocols to get permission to work remotely (based upon the employer policy). Employers are required to compensate exempt employees performing remote work at their regular salary. If a partial day is worked employers must compensate the exempt employee for the entire day.

Delayed Payday

In the event of an emergency, or unplanned closures, employers are generally still expected to pay employees in a timely fashion. For example, New York requires that workers are paid no longer than seven (7) days after the end of the week when the wages were earned and in New Jersey employers have ten (10) working days after the end of a pay period to pay wages. Connecticut requires wages to be paid weekly or bi-weekly but no later than eight (8) days after the last day of the pay period. While a storm or natural disaster may understandably interfere with an employers’ ability to satisfy these requirements, there is often little leeway afforded employers.  Despite the massive devastation brought by Hurricanes Harvey and Irma there was no indication that employers were relieved from their obligation to abide by wage laws.

While wage payments are an essential part of employer assessment during an emergency, there are several other considerations that warrant assessment.

Employee Leaves of Absence

While most employers have leave or paid time off policies, emergency circumstances test the limits and equitable application of these policies.  Some states have a variety of leave benefits that employers must consider. Unlike some states, New York, New Jersey, Texas and Florida state law does not require employers to provide sick or vacation leave.  However, local or municipal laws within these states may require paid leave (New York City, Jersey City, etc.). Nonetheless, pursuant to federal law employees are entitled to use available sick or medical leave when faced with natural disasters resulting in their own or their loved ones injury or illness. Federal law requires that all private sector employers with fifty (50) or more employees provide up to twelve (12) weeks of unpaid leave in a twelve (12) month period.  Employers must be careful to notify their workforce of their ability to take leave.  Additionally, while leave is often taken in specific delineated chunks of time, leave can also be taken intermittently.

Any time a determination is made regarding benefits, it must be done equitably.  All decisions regarding leave approvals, paid time off or any other scheduling must be done using objective criteria and performed consistent with business necessity.  Ad hoc decisions will be looked at by state and federal equal opportunity.

Reasonable Accommodations

An employee facing an act of God may suffer an injury or illness that would qualify as a disability or require an accommodation that they did not otherwise require based upon the emergent circumstances. Connecticut employers with three or more employees are required to accommodate employees with disabilities.  Disabilities can be episodic and include mental and physical maladies. Unexpected hardship is often a trigger for individuals with mental health challenges and employers are obligated to provide accommodations including time off, unconventional scheduling and other measures to those with disabilities.

Even if an employee has exhausted her FMLA or other leave, she still may be entitled to leave based upon disability laws. Reasonable accommodations include modification of leave policies and leave for employees even in circumstances where the employer is not otherwise obligated to provide leave.