Employer’s Guide to Enduring the Employment Law Ramifications of a Major Storm
It seems annually, Florida braces itself for multiple hurricanes to hammer our communities and ravage our property. It is easy to get complacent, but safety and security should be paramount as residents brace for the expected damage. For businesses, storms not only represent a danger to the physical property of the business, but also places a burden on employees and customers trying to meet their obligations while caring for their families and property. From a business perspective, solid planning and communication are paramount. Developing an Emergency Preparedness Plan which includes systems to protect your critical business information and remain in contact with key personnel and employees is key. When the storm passes, employers will undoubtedly face a myriad of employment law issues. Employers should consider these issues once the storm passes. Regular messages should be sent updating staff on scheduling, hours of operation, and employee assistance programs (such as contact numbers for emotional support programs or counseling). If you are going to close the business operations, then prompt communication with hourly employees is especially important because employers don’t want hourly employees to show up and expect to be paid. A crisis phone number should be provided for employees to ask questions. Communicate by email, phone, text or through other familiar systems such as the company’s scheduling app. 1. Utilizing Remote Work Employers trying to return to full operating capacity may choose to consider allowing employees to work remotely (i.e., at home), whether as a long-term or short-term solution. Should this action be taken, it is important that to note that all non-exempt employees must be compensated for all time spent working. Thus, employers must pay non-exempt employees for performing any work remotely and, moreover, may need to rely on employee self-reporting of hours worked in such a scenario. Exempt employees, too, must be paid their regular salary in this circumstance, unless leave time can be applied for partial days. 2. Payment of the Wages of Non-Exempt Employees As noted above, the federal Fair Labor Standards Act (FLSA) requires that non-exempt workers be paid for the time they work. Employers need not compensate non-exempt employees who are not working because of a storm. Notably, it does not matter whether the absence is based on the employer’s decision to close a worksite or the employee’s decision to stay home or evacuate. In some narrow cases, there may be exceptions during a weather event for waiting time, or on-call time. For example, the FLSA considers employees to be “on call” if they must remain on the employer’s premises and are unable to use their time for their own purposes. 3. Payment of the Wages of Exempt Employees Pursuant to 29 C.F.R. § 541.602(a), deductions to exempt employees may not be made when work is unavailable at the employer’s instruction. When an employer shuts down its operations because of adverse weather conditions for less than a full workweek, exempt employees must be paid their full salary. This rule also applies if exempt employees work only part of a day. If an employer is open for business, on the other hand, an exempt employee who misses work due to the weather situation is considered absent for personal reasons. In lieu of paying salary, an employer with a bona fide leave or vacation policy may require the employee to use his or her accrued paid time off to cover the absence. If an employer has a leave policy, but the absent employee does not have a leave account balance, the employer is not obligated to pay the employee. Unpaid leave, in full-day increments, may be an option for employees who do not have a leave account balance. 4. Delays in Wage Payments One possible consequence of a natural disaster is the delayed processing of employees’ wage payments. This situation can cause employers to unintentionally run afoul of state law. Florida does not have any specific laws addressing the frequency of wage payments. But a Florida employer may have multistate operations that are affected due to a storm. Employers may be unable to process or fund payments to satisfy the requirements of certain state laws, especially in the immediate wake of a storm. 5. Providing Reasonable Accommodations Additionally, employers should be prepared to address employee requests for accommodation. The Americans with Disabilities Act (applicable to employers with 15+ employees) and related state 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 a storm’s impact may be entitled to reasonable accommodation, employers should take all such inquiries seriously. 6. Applicable Leaves of Absences Employers should bear in mind that employees may be entitled to use certain types of leave to deal with the ramifications of a major storm. For example, employees who have suffered 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). Even if not covered by the FMLA’s provisions providing for time off for illness or injury, an employee may qualify for sick or other leave under a company policy or collective bargaining agreement. Employees absent from work to assist with relief efforts may separately qualify for protected time off. Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4303(13), employees may take a leave of absence for duty in the uniformed services. For purposes of disaster relief, uniformed services include specified service by members of the National Disaster Medical System, appointment of a “System member” of the National Urban Search and Rescue Response System into federal service, the National Guard if called by the President of the United States, and any other category of persons designated by the President during a time of national emergency. The Florida Disaster Volunteer Leave Act, Fla. Stat. § 110.120, grants state employees who are certified disaster service volunteers of the American Red Cross a paid leave of absence for up to 15 working days in any 12-month period following a disaster designated as Level II or above by the American Red Cross. An employee granted leave under this Act is not considered an employee of the state for purposes of workers’ compensation claims that may arise relating to such leave. By its express terms the Act applies to natural disasters occurring within Florida’s borders. The Act requires approval of the Governor and the Cabinet for leave to respond to a disaster occurring outside of Florida, but within the boundaries of the United States. Relatedly, to the extent that employers relax enforcement of their leave policies in light of a natural disaster, 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. 7. Eligibility for Unemployment Benefits In Florida, employees who are displaced from their positions due to a natural disaster will likely be eligible for unemployment compensation. State unemployment benefits typically run for 26 weeks, though some states may alter or extend those weeks of coverage. 8. Making 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 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. 9. Federal and State WARN Notifications In the wake of a storm, should an employer ultimately decide to close a facility, or implement a mass layoff, due to the storm’s effects, a notice to employees will be required under the federal Worker Adjustment and Retraining Notification Act (WARN). Briefly, the WARN Act requires, pursuant to 29 U.S.C. § 2101(1)-(3), that a covered employer with 100 or more employees is required to provide sixty (60) days’ notice prior to a plant closing or mass layoff. When required, WARN notice must be provided to affected nonunion employees, the representatives of affected unionized employees, the state’s dislocated worker unit, and the local government where the closing or layoff is to occur. While WARN provides some leeway in the case of a natural catastrophe, the exception is quite limited. Employers may give shortened (or retroactive) notice if the disaster was a direct cause of the job losses, and may be able to rely on the “unforeseeable business circumstances” exception if the disaster was an indirect cause. Nonetheless, employers are not relieved completely of their WARN notice obligations. They must give “as much notice as is practicable,” and they must state why they were unable to give notice earlier. See 29 U.S.C. § 2102(b); 20 C.F.R. §§ 639.7, 639.9. Some states have enacted mini-WARN laws or otherwise require notice to a state agency in the event of a mass layoff. Florida is not among the states that have their own mini-WARN law. Multi-state employers should make sure they know of state mini-WARN laws where they operate.