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Natural disasters such as wildfires in Maui, Hurricane Idalia,
flooding in California, and excessive heat almost everywhere have
taken a real human toll over the past few months. As the end of
summer approaches, many Americans will look back on it as a season
of practically unparalleled natural disaster. And, at least for
Atlantic hurricanes, there are still a couple of months to go
— the season doesn’t end until November 30, 2023.
People experiencing natural disasters must rebuild lives and
property. A natural disaster is no time for employers to think they
are relieved of employment law obligations.
Here is a basic (albeit not exhaustive) checklist of items to
immediately consider when employees face a natural disaster or its
aftermath:
- Payroll obligations do not stop. Remember — exempt
employees who perform any work in a single
workweek must be paid their salary for the week. This includes time
when the employee might be unable to report to the office/worksite
or it is otherwise closed. Non-exempt employees do not have to be
paid if no work is performed, though there is an exception for
hourly employees paid on a fluctuating workweek basis who perform
some work in the week. - Exempt employees who are unable to work due to the natural
disaster can be required to take available leave. Nonexempt
employees can also use available leave to replace income not earned
because of the inability to work. - Consider whether there are WARN Act requirements if the
employer shuts down or has to lay off employees permanently or for
an extended period of time. Remember that the specific requirements
of the WARN Act must be satisfied, regardless of why the employer
is terminating or laying off the employees. (Note that, under the
WARN Act’s “unforeseeable business circumstances”
exception, depending on the specifics of the natural disaster, the
standard 60-day notice period may potentially be shortened.) Also,
be sure to check for state law “mini WARN Act”
requirements that may apply, depending on location. - Establish communication systems beforehand and assess their
effectiveness. Do you have an automated message system to reach all
employees? How can employees effectively notify you of a particular
hardship they may have encountered, especially if unable to report
to work for a period of time? Communication is key, not only from a
compliance standpoint but in supporting the workforce in a
difficult time and notifying staff of key expectations and
deadlines. Be sure to consider how you will communicate in the face
of power outages or when phones are down. - Make sure employee records (payroll, personnel files) are
protected during the disaster and accessible after the
disaster. - Understand that the possibility of injury is heightened if
employees assist in disaster recovery. Remember and comply with
OSHA obligations to record and report injuries. - Be aware of state unemployment compensation requirements that
may affect the eligibility of employees to receive benefits. While
an employer cannot promise a displaced employee will or will not be
eligible for benefits, an employer can be a resource for helping
employees decide whether and how to apply. - If covered by a collective bargaining agreement (CBA), consider
whether any post-disaster action implicates terms or conditions
covered by the CBA. - In the case of extended absence or closure, consider whether
employees remain covered by applicable group health plans as well
as determine whether COBRA notices must be provided. - In the case of damage to your employment facility, remember
that OSHA generally requires that a workplace be safe for its
workforce. Accordingly, specialist vendors may need to conduct
testing, such as air quality testing, structural integrity,
etc. - Be flexible with medical documentation regarding requests for
and returning from leaves of absence. Medical provider availability
will likely be impacted. - Look at past practices in deciding how to make employment
decisions but remember that a natural disaster presents employees
with unique situations and challenges. An employee unable to report
to work because of a natural disaster is different than an employee
who simply chooses not to report to work in good weather. - Situations caused by natural disasters give new meaning to the
cliché that “discretion is the better part of
valor.”
Optimistically, the spate of natural disasters we’ve seen
these past several months is behind us. Realistically, that is
unlikely to be the case. Winter is right around the corner, and
with it, new challenges will emerge.
Regardless of what happens and why, employers must be prepared
to deal with a natural disaster, its aftermath, and its effect on
an employer’s most valuable resource — its people.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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