Littler

Hurricane Dorian is being tracked carefully as the storm approaches Florida, just in time for the holiday weekend. The hurricane is expected to intensify into at least a Category 4 storm before it makes landfall and is forecast to be one of the strongest storms to hit the area in decades. As Florida residents and tourists prepare for Dorian, below are five issues affected employers may consider as they face employee safety issues, possible property damage, and potential work closures.

1)  Safety Issues

Safety and security are, of course, the foremost concerns as employers prepare for any emergency. As Florida braces for the arrival of Hurricane Dorian, both state and federal agencies have urged residents to pay attention to warnings and stock emergency supplies. The Federal Emergency Management Agency (FEMA), Florida’s similar state agency, the Centers for Disease Control (CDC), and Florida Governor Ron DeSantis have issued general storm and disaster preparedness information. That information is linked below and includes:

2)  Calculating Wages of Employees

After giving the requisite care to the safety of employees and themselves, employers should look to address some of the typical questions that arise in the wake of a hurricane. For example, there may be questions about how to pay employees (exempt and nonexempt) if a workday is cut short or if all work is suspended for a few days. Depending on the severity of the damage, some employers may want to voluntarily continue paying employees their wages (full or partial), which requires forethought and potentially tax planning. Florida follows standards set by the Fair Labor Standards Act for the payment of wages, such that employers must pay nonexempt employees only for hours actually worked.

3)  Leaves of Absence and Reasonable Accommodations

Once the storm has passed, employers may see a surge in employee requests for time off, leaves of absence, or reasonable accommodations. For example, employees suffering a serious injury or illness—or who have a family member who did—may be entitled to leave under the federal Family and Medical Leave Act (FMLA). Because Florida does not have any statewide law on family or medical leave, or sick time, employers should consult and comply with their own leave and paid time off policies as well as federal law.

Additionally, employers in the affected region should be prepared to address employee requests for accommodation. The Americans with Disabilities Act (applicable to employers with 20+ employees) and related state and local antidiscrimination laws require employers to provide reasonable accommodations to qualified employees with disabilities. Because employees who are physically or emotionally (e.g., post-traumatic stress disorder) injured by the storm may be entitled to reasonable accommodation, employers should take all such inquiries seriously.

To the extent that employers relax enforcement of their leave or other policies in light of Hurricane Dorian, they should remain mindful of state and federal antidiscrimination laws. Employers should try to ensure that all exceptions are based on legitimate, non-discriminatory reasons and are consistently applied across the workforce.

4)  Duties Imposed by Local Ordinances

Local ordinances may also affect employer leave, or other, obligations. For example, Miami-Dade County has its own family and medical leave ordinance.1 In Dade County, private employers with 50 or more employees must provide family and medical leave to eligible employees. Permissible reasons for, and the length of, leave under the ordinance largely are the same as those under the FMLA.2 Even in good weather, employers should keep an eye out for any applicable municipal ordinances affecting their labor and employment duties.

5)  Qualified Disaster Payments to Employees

Internal Revenue Code section 139 provides that an employer may make a payment to an employee that constitutes “a qualified disaster relief payment,” without any income or payroll tax consequences. “A qualified disaster relief payment” means any amount paid to or for the benefit of an individual to reimburse or pay reasonable and necessary personal, family, living, or funeral expenses incurred as a result of a “qualified disaster,” or to reimburse or pay reasonable and necessary expenses incurred for the repair or rehabilitation of a personal residence or repair or replacement of its contents to the extent that the need for such repair, rehabilitation, or replacement is attributable to a qualified disaster. A “qualified disaster” is generally one that is declared by the President of the United States. In the past, hurricanes have been presidentially declared “qualified disasters” within certain affected areas.

In short, with such a designation, employers may make payments to their employees to help them with living or personal expenses or repairing their homes without having to withhold or pay income and payroll taxes.

As the above points indicate, hurricane preparedness for employers extends beyond emergency supplies and safety considerations. Employers can also consult the U.S. Department of Labor storm recovery webpage for guidance on unemployment assistance, dislocated worker grants, and Occupational Safety and Health Administration considerations. We hope our friends, colleagues and fellow Floridians in the path of Hurricane Dorian stay safe during the storm, and we will continue to offer any assistance possible during the hurricane recovery.

 

Footnotes

1 Dade County, Fla., Code of Ordinances §§ 11A-29 et seq.

2 Local ordinances concerning employee wages and benefits may be preempted by state law. See Fla. Stat. § 218.

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