In Wake of Hurricane-Related Closures and Absences Surface Various Issues for Employers

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[author: Kristin A. LaRosa]

By now we hope you are all safe, and have made it through the blast of Hurricane Sandy. Unfortunately, the effects of Sandy required many employers to close their businesses, or, for those that remained open, caused many employees to miss work. As a result of these unexpected absences and business closures, employers may be confronted with a variety of employment law issues, including wage and hour laws. Below is a quick reference guide for employers to use to ensure that their employees are properly compensated and accommodated for time off during this difficult period.

Wage and Hour Issues

Non-Exempt Employees. Generally, employers are required to pay non-exempt employees only for hours worked. This means employers are not required to pay non-exempt employees for weather-related absences (even if the employer’s office is closed), unless a handbook or agreement states otherwise. This also generally applies to non-exempt employees who are scheduled to work and are sent home early because of inclement weather. However, employers should be mindful of state “report-in pay” laws, which require that employees be compensated for a minimum amount of time worked on days they are unexpectedly sent home early. Employers should consult counsel regarding the status of “report-in pay” laws of their state.

If offices are open, employers may require non-exempt employees who do not report to work because of weather-related conditions to use vacation or personal time. Again, employers should be sure to consult their handbook policies and be guided accordingly.

Exempt Employees. Unlike non-exempt employees, exempt employees must almost always be paid their full salary for any week in which they perform work. Under the Fair Labor Standards Act, this includes compensation for absences due to office closures resulting from inclement weather. The Department of Labor has taken the position that, when a business is closed because of inclement weather, employers may not dock the pay of exempt employees who perform any work during that week. If an employer decides to send employees home for part of the day, or close for the full day, exempt employees must be paid for the entire day. Employers may require that employees use paid time off or vacation time for these absences. If an employee has not accrued enough paid time off to cover the absence, however, an employer may not dock the employee’s salary.

If an employer remains open during inclement weather and an exempt employee cannot report to work due to transportation or other problems, the employer may dock the employee’s pay if the employee is out for one or more full days. The employer also can require the employee to use paid time off to cover the absence even if the absence is for less than a full day. Employers who wish to consider docking an exempt employee under these circumstances should consult with counsel as certain deductions may threaten the exemption status of the employee.

Employee Waiting Time. Employees who are instructed to remain on-call during inclement weather, and who cannot use the time for their own personal benefit, must be paid for the time spent waiting. On the other hand, employers may not be required to pay employees who are instructed to remain on-call, but who are free to make personal use of that time.

Leave Issues

Wage and hour concerns are not the only type of employment issues that employers should consider in the wake of a natural disaster. Employers should also be familiar with state and federal leave and disability laws and how they may affect employees who need to take leave as a result of such a disaster.

Family and Medical Leave Act (FMLA). Employers are reminded that employees who sustain injuries resulting from a natural disaster and need to take leave may qualify for protection under the FMLA and related state leave laws. Moreover, if an employee’s child, spouse or parent suffers an injury caused by a natural disaster and the employee needs leave to care for this individual, they may also be entitled to protections under the referenced leave laws.

Americans with Disabilities Act (ADA). If an employee sustains a medical condition as a result of a natural disaster for which the employee requires leave, employers may be required to provide leave as an accommodation as long as it does not pose an undue hardship on the employer’s operations. Employers may also be required to consider accommodations other than leave. Employers who fail to provide accommodations may be subject to liability under federal and state anti-discrimination statutes.

Inclement Weather Policy

An effective policy will help employers eliminate the guesswork involved when these natural disasters hit and maintain consistency in how employees are treated. The policy should explain if and how employees should be paid for any weather-related absences.

If you have any questions about the information provided in this Alert, please contact the author.