In an increasingly volatile world where natural disasters such as hurricanes, wildfires, earthquakes and floods have become increasingly common, employers’ responsibilities are expanding beyond their businesses’ day-to-day operations. Organizations not only need to ensure the safety and well-being of their employees during natural disasters but also address various employment-related issues. Understanding applicable employment laws when disasters strike can be critical for employers as they plan and prepare for these events.
This article provides an overview of some federal employment laws employers may need to comply with during natural disasters. Employers may also need to comply with state and local requirements. Therefore, employers should consider consulting with local legal counsel to properly prepare for these events.
Employee Pay Requirements
When employees are unable to work or an employer’s place of business is closed due to a natural disaster, employers’ legal obligations regarding employee pay can vary depending on whether their employees are nonexempt or exempt.
The Fair Labor Standards Act (FLSA) establishes minimum wage and overtime requirements for nonexempt employees. Under the FLSA, nonexempt employees must be paid for the hours they actually work. Therefore, if nonexempt employees are unable to work due to a natural disaster, employers are not required to pay them. The same is true if an employer temporarily closes their business because of a natural disaster. However, there is an exception when employees receive fixed salaries for fluctuating workweeks, meaning workers have agreed to work an unspecified number of hours for a specific salary. Employers must pay these employees their full weekly salary for any week in which any work was performed.
Moreover, there are certain situations where employers must compensate nonexempt employees even when they don’t perform any work. For example, if an employee is required to remain on call or wait to perform work, either on the employer’s premises or off- site, that time may be considered compensable under the FLSA.
For employees who are exempt from FLSA minimum wage and overtime requirements, employers are required to pay their full salary for any week in which they perform any work. Therefore, if an employer closes or is unable to open their business during a natural disaster, they must pay exempt employees their full salary if they performed any work that week. However, if exempt employees perform no work during a week due to a natural disaster, the employer does not need to pay them.
Additionally, employers may place exempt employees on leave without pay or require them to use leave if employees choose to stay home during weather emergencies when the employer is open for business. Yet, employers should exercise caution when docking nonexempt employees’ pay since deductions from salary for less than a full day’s absence are not permitted under the FLSA.
Accommodations and Leaves of Absence
During natural disasters, employers may have to respond to employee accommodation or leave of absence requests. In these situations, employees may be entitled to accommodations or leave under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), as well as state and local laws. Employers can consider the following accommodation and leave obligations during natural disasters:
Eligible employees of covered employers can take up to 12 weeks of unpaid, job-protected leave under the FMLA to care for their own or a family member’s serious health condition. During a natural disaster, eligible employees may be entitled to FMLA leave for serious health conditions caused by the disaster. For example, an employee may need to take leave to deal with inoperable medical equipment due to a power outage.
Under the ADA, covered employers must reasonably accommodate employees with a physical or mental disability unless doing so would create an undue hardship. This obligation does not change during natural disasters. Therefore, employers can ensure their preparations and responses to natural disasters consider the unique needs of employees with disabilities. Such efforts might include providing necessary equipment or using accessible communication methods.
Employees who are part of an emergency services organization, such as the National Guard or a Reserve unit, may be protected by USERRA. This law prohibits employers from discharging and denying promotions or other employment benefits because of an individual’s uniformed service membership, service or obligation. Being aware of USERRA requirements and protections can help ensure employers comply with this law during natural disasters.
Employee Benefits Considerations
Natural disasters often cause business disruptions, resulting in closures or employees being unable to work. This may result in health coverage issues or interruptions. Employers can prepare for these by reviewing their plan documents and speaking to their insurance brokers regarding coverage options in the event of a natural disaster. Additionally, employers can familiarize themselves with any legal obligations they may have under the Employee Retirement Income Security Act, the Consolidated Omnibus Budget Reconciliation Act and other laws to ensure they comply with any coverage or notification requirements.
Employers may be required to comply with other federal laws and requirements during natural disasters. For example, layoffs and closures are not uncommon during natural disasters. The Worker Adjustment and Retraining Notification Act—commonly known as the WARN Act—requires covered employers to provide employees with advance notice of mass layoffs and plant closings. However, there is an exemption if a layoff or closing is the direct result of a natural disaster. In these situations, employers are only required to provide as much notice as practicable.
Additionally, compelling employees to come to work during a natural disaster may create safety concerns that trigger an employer’s legal obligations. For example, employers must provide employees with safe and healthful working conditions under the Occupational Safety and Health Administration (OSHA). By carefully considering any OSHA obligations before requiring employees to work during natural disasters, employers can ensure they comply with their legal duties and support their employees’ well-being.