Avoiding Legal Compliance Pitfalls During Disaster Recovery
When natural disasters strike, business owners not only must worry about possible worksite damage, but also how to avoid employment law compliance pitfalls during recovery.
Employers should keep the following in mind when the hard work of recovery begins:
Wage and Hour. If your business can open, remember pursuant to the Fair Labor Standards Act (FLSA) you must pay non-exempt workers for any hours worked. Conversely, unless you have written policies that provide for some compensation during emergency closures (other than paid leaves), nonexempt workers do not have to be paid for hours not worked. Be aware that some states require payment of non-exempt employees under call-in or reporting pay laws, so if in doubt, consult counsel.
For exempt employees, generally they must be paid their regular salary, without deductions, if any hours are worked in the week. Employers can require exempt employees to use any paid leave available to them, but if they have exhausted that time, their wages cannot be reduced if they have worked. If there are closures of a full week and no work was performed, the salary for that time does not have to be paid. Again, if considering deducting from a salary, a conversation with legal counsel should take place to avoid possible violations.
Volunteers. After a disaster that damages worksites, there may be talk of employees volunteering to get the business going again. Some might argue it is in their best interests, after all. Per the Department of Labor (DOL), however, if employees perform any of their regular duties and provide benefit to the employer, they must be paid. Community members, friends, and family can volunteer, but steer clear of potential Wage and Hour issues by not allowing employee volunteers unless you have vetted this issue through legal counsel.
Government Assistance. Some states may provide for unemployment benefits if a business is shut down for an inordinate amount of time or the worker is let go after a disaster for any other reason than his own misconduct. In addition, some employees may be eligible to receive Disaster Unemployment Assistance, a federal program of the DOL that is administered by the states.
Generosity with allowing vacation or paid time off leave during times of crisis, especially if the homes of employees have been damaged, should be the norm if possible. Not only is it the right thing to do, not doing so could cause a public relations crisis. If the employee has no paid leave available, explore unpaid leave options. Make sure you apply leave policies consistently.
Keep in mind your legal obligations regarding military leaves pursuant to the Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA). Some employees may be called up by National Guard units to assist in the recovery efforts. Employers must provide unpaid leave and are prohibited from discriminating or retaliating against employees who are called for military service.
Tread carefully when it comes to the attendance policy, especially if you want to discipline or terminate. Remember that some employees may be in temporary housing and have no access to transportation because cars were damaged or municipalities have shut down mass transit. Same caution applies to requesting employees call in daily. Some may have lost their phones, or lack electricity to charge them, or have other communication challenges. Whatever policy you set, make sure it is consistently applied to avoid any disparate impact claims.
For employees on FMLA leave when an emergency closing occurs, if the business is closed for more than a week, the time should not be counted against FMLA leave. While FMLA does not require employers to give time off because of a natural disaster, employers must be ready to respond to requests for FMLA for employees to address their own, or a family member’s, serious health condition related to the event. Don’t forget, as well, that a natural disaster could cause impairments that rise to the level of a disability, and an independent analysis for the need for leave and accommodation must be conducted under the Americans with Disabilities Act (ADA).
Health and Safety Issues
If a business has been damaged, make sure repairs are completed as safely as possible with the proper equipment, tools, and clothing to minimize potential workers’ compensation claims. Be mindful as well that under the Occupational Safety and Health Act (OSHA), employers must protect employees from “imminent danger.” Accordingly, workers have the right to refuse to work if doing so puts them in imminent danger. OSHA has guidelines for work practices related to disaster clean up at www.osha.gov.
Times of crisis call for consistent compliance, but also as much compassion that can be spared. Those affected by natural disasters face difficulties in their professional and personal lives. One great resource that should be tapped is an Employee Assistance Program (EAP). EAP can help employees get the services they might need during recovery and beyond. Sequent clients and their employees can call the Sequent Personal Service Teams at 877-447-4111 with help navigating these issues.
Disclaimer: This article is provided for educational and informational purposes only and does not provide specific legal advice. No attorney-client relationship has been formed and this article should not substitute for legal advice from a licensed attorney in your state.
Kim Freeman, General Counsel
As Sequent’s General Counsel, Kim oversees legal and regulatory compliance for all company departments and units. Besides serving as the subject matter expert on employment-related matters, including employee relations, performance management, and employee grievances, she negotiates and prepares corporate, transactional, and employment-related agreements.