2017 Hurricane Season: Legal Implications for Employers

The National Oceanic and Atmospheric Administration has announced that the 2017 hurricane season will be even worse than predicted. An employer’s navigation of hurricane fallout can have a lasting impact on its business operations, reputation, and employees. In preparation, the following legal implications should be considered.

Wages. Wage and hour laws remain in effect during a natural disaster. Employee absences due to the disaster’s interference with transportation are considered voluntary and personal, not subject to compensation. Nonexempt employees are entitled to be paid only for hours actually worked. However, both non-exempt employees who are paid on the fluctuating workweek method and exempt employees must be compensated for the entire workweek if they perform any work at all, at home or at work, during a week during which the business is closed. In doing so, the employer can deduct from the employee’s paid time off or vacation leave. If paychecks are handed out at work, an alternative method of distribution should be arranged to avoid delay in the event of a natural disaster.

Leave. Employees are not entitled to leave simply due to a natural disaster. However, employees are entitled to leave under the Family and Medical Leave Act (FMLA) to care for child, spouse, parent with serious health condition caused by the disaster. For instance, an employee may be called during a power outage to care for a child, spouse, or parent whose serious health condition and care depend on power for refrigeration of medication or to run medical equipment. Or, a disaster may exacerbate an employee’s own anxiety, depression, or blood pressure causing inability to perform the job. In these cases, the employee is entitled to up to 12 weeks of leave under the FMLA. When an employer suspends its operations for one or more weeks, that time cannot be counted against the employee’s FMLA leave. Where the employee’s impairments rise to the level of a disability, reasonable accommodations, which may include longer leave, are required by the Americans with Disabilities Act and similar state and local laws. Leave is also be required for employee members of the National Guard or Reserve unit who may be called to service.

Safety. Employers are required to protect employees from unreasonable danger in the workplace including imminent natural phenomena and resulting hazards. Correspondingly, employees have the right to refuse to work in conditions they reasonably believe are unsafe. If the employer needs employees to remain at the worksite during a natural disaster, the employer should arrange for food, shelter and the evacuation, if necessary, of those employees.

Unemployment. Employees separated from employment due to a natural disaster are entitled to unemployment benefits. Such benefits are not charged to the employer.

Governmental response. Employers should watch for governmental agencies to modify and relax rules in response to natural disasters. For Hurricane Harvey, deadlines have been extended for employer’s tax returns and tax deposits. And, the IRS has announced that 401(k) and similar employer-sponsored retirement plans can expedite loans and hardship distributions to hurricane victims who may use such money to pay for necessities like food and shelter which is not normally permitted.