With Hurricane Florence making landfall in North Carolina, our firm is frequently receiving questions from employers regarding their responsibilities to their employees during and following the storm. What follows is an overview of some of the most common legal issues that may arise for employers under applicable employment law statutes and regulations. However, given the nuanced nature of these issues, we encourage you to discuss your legal questions with an attorney before making any decisions.
Payment of Wages
If your office is closed due to the hurricane, one of the first questions you may have is whether you are required to pay your employees for the time that they would otherwise be at work. Assuming your employees are not working remotely (in which case you should pay them for their work), the answer depends on whether your employees are exempt or non-exempt. If your employees are exempt, you are required to pay them their entire salary if they worked any portion of the workweek. On the other hand, if your employees are non-exempt, you do not have to pay them for time they do not work, regardless of whether they were ready and available to work.
If your office is open, but an employee opts to stay home because of the weather, whether the employee is exempt or non-exempt will, again, dictate your obligations. If such an employee is exempt, you may consider the employee to be on leave without pay for every full day that the employee is absent. Note, however, that you are prohibited from deducting from an exempt employee’s wages for any partial days worked, such as if the employee arrived late or left early because of the hurricane. Alternatively, you may require the exempt employee to use accrued paid time off, if applicable. If the employee opting to stay home is non-exempt, again, you are only required to pay them for the time they work.
If you employ any employees who are required to be on call during the storm, such as emergency or maintenance workers, you may be required to compensate them if they are not free to use such time for their own purposes. Similarly, if any of your employees are required to wait while at work, such as waiting for a manager to arrive or for power to be restored, such time is generally considered to be compensable.
Employees Taking Leave
If your office is closed and you have any employees currently taking leave under the Family Medical Leave Act (FMLA), the impact on their leave generally depends on how long your office is closed. If your office is closed for less than a full week, the entire week will still likely be counted against each employee’s FMLA leave allotment. However, if your office is closed for a full week or more, the days that the office is closed likely would not count against each employee’s FMLA leave allotment. These standards may change if the employee taking FMLA leave is taking leave in increments of less than one week.
If, in the aftermath of Hurricane Florence, an employee requests leave because the employee or the employee’s spouse, child, or parent suffered a physical or mental illness or injury, you should proceed with your typical “serious health condition” analysis (along with your analysis of other FMLA prerequisites) when determining whether to approve leave. Natural disasters like Hurricane Florence often cause such issues, such as when an individual’s medical equipment stops working because of a power outage, or when an individual’s chronic condition flares up due to stress caused by the natural disaster.
Other Employment Law Issues to Consider
The number of employment law issues that may arise in the wake of a natural disaster as catastrophic as Hurricane Florence are virtually limitless. For example, under the Americans with Disabilities Act (ADA), you may have to work to develop reasonable accommodations for employees who are physically or emotionally injured as a result of the storm; under the Uniformed Services Employment and Reemployment Rights Act (USERRA), you need to ensure that any employees who are members of certain emergency services organizations, such as the National Guard, are entitled to reemployment in the event they need to take leave to respond to an emergency situation; and under applicable unemployment regulations, employees displaced from their positions because of the hurricane are likely eligible for unemployment benefits. Regardless of your business’s particular situation, you should always consult with an employment law attorney when considering your options.
In the meantime, we hope that everyone affected by the storm stays safe.