Employers frequently face a rash of absences and call-offs in the wake of a natural disaster. Generally, whether a business is required to pay an employee who misses work depends on whether the employee is exempt or non-exempt under the Fair Labor Standards Act (“FLSA”). If an exempt employee misses work for personal reasons, but the business remains open, the employer may deduct a full day’s salary. This includes absences due to transportation problems caused by weather. Likewise, a business is not required to pay a non-exempt employee for time not worked. If a business is closed due to a storm, the employer is obligated to pay exempt employees their normal salary, as long as the shutdown lasts less than a week.
Employers should also be aware that the Uniformed Services Employment and Reemployment Act (“USERRA”) protects service members’ rights to employment during and after periods of active duty. Military personnel and civilian emergency workers who are called upon to serve in the wake of a natural disaster may be entitled to protected leave under this federal law.
Although the Family and Medical Leave Act (“FMLA”) protects certain absences due to serious health conditions, leave due to natural disasters generally does not qualify (absent other considerations). Thus, an employee could not request FMLA leave solely to deal with the aftermath of a hurricane. However, if an employee is already on FMLA leave when a hurricane strikes, and the business temporarily closes due to the weather, the days for which it was closed should not count against the employee’s FMLA entitlement. Likewise, if an employee had planned to take paid time off on a day in which the business closes, the time should not be counted against the employee’s PTO entitlement.
The FLSA and similar laws require employers to maintain certain business records. Businesses that keep paper records or documents on local hard drives could find themselves at a loss if they are wiped out by flooding. Unfortunately, there is no record-keeping exception for natural disasters. For this reason, business records should be backed up on a cloud-based system. In the event that records, such as timesheets, are destroyed, ask the employee to recreate the record as accurately as possible.
The Occupational Safety and Health Administration (“OSHA”) enforces the workplace safety standards contemplated in the Occupational Safety and Health Act. According to OSHA’s website, “employers are required to protect workers from the anticipated hazards associated with the response and recovery operations that workers are likely to conduct.” OSHA recommends that employers who operate in anticipated hurricane zones maintain an evacuation plan and certain businesses are required to develop an Emergency Action Plan. Generally, employers should be mindful of the conditions in which they expect their employees to work.
Should you have any questions or if you would like to discuss how hurricane season will impact your company, please contact your regular Saul Ewing Arnstein & Lehr LLP labor and employment attorney.