Hurricane season is only half over, with Hurricane Ida leaving a trail of damage across Louisiana and beyond, and Hurricane Larry swirling in the Atlantic Ocean, although the storm is unlikely to be threaten the United States. preparedness plans to ensure employee safety, business continuity, and preservation of records and assets. However, it is also important for employers to consider potential HR legal issues and liability that could arise before, during and after a major storm.
Before the storm. A common issue that employers face as a hurricane approaches is whether it can compel employees to report for work despite the hurricane, and whether the employer can take adverse action against an employee who does not show up for work because of the hurricane. An employer can likely require an employee to report to work, even when an evacuation order for the area has been issued. In Gilliyard v. Delta Health Group, Inc., 757 So. 2d 601 (Fla. 5th DCA 2000), the Florida Fifth District Court of Appeal, which has jurisdiction over Brevard, Lake, Orange, Osceola, Seminole and Volusia counties, among others, dismissed a employee against her former employer who fired her from employment when she failed to report for work following the issuance of mandatory evacuation orders due to serious fires. While an employer may have the right to terminate an employee who does not report for work in these circumstances, employers should prioritize employee safety and consider the risk of liability when an employee is injured due to his work in dangerous conditions.
During the storm. When employees are exempted from working in the aftermath of a hurricane, an employer does not have to pay hourly employees who are “not exempt” from the provisions of the Fair Labor Standards Act for missed hours because it is. is time not worked. . Likewise, if the same hourly employee decides not to come to work because of the storm, the employer does not need to pay for the time not worked. On the other hand, an employer is required to continue to pay exempt employees for their absence from work during the hurricane if the workplace is closed; provided that the closure is less than a full week of work. However, the employer may require exempt employees to use available paid leave benefits.
When an employee is called in by the National Guard or Reserves to participate in storm response, whether before, during or after the storm, an employer must comply with the requirements of the Uniformed Services Employment and Reemployment Rights Act. (“USERRA”), which prohibits dismissal, refusal of initial employment, refusal of promotion or refusal of any employment benefit because of a person’s membership, performance of a service or the obligation to perform service in uniform. Employees on USERRA leave may, at their option, use the available paid leave benefits to be paid for their time away from work.
After the storm. When an employee cannot report for work due to transportation difficulties encountered as a result of the storm, the absence is considered a personal absence under US Department of Labor regulations. An employer does not have to pay a non-exempt employee for any missed work time due to transportation difficulties caused by weather conditions. An employer may withhold the wages of an exempt employee for a full day of absence for that reason, or an employer may require the employee to use paid leave benefits for a full day of absence for this reason. However, an employer cannot withhold the exempt employee’s wages for any absence of less than a full day.
If an employer allows remote work in the aftermath of the storm, non-exempt employees should still be paid for any time worked remotely, and the employer should keep in mind that they may have to rely on self-declaration of working hours by employees. Exempt employees working remotely must still be paid their regular pay, although an employer may require the employee to use paid vacation pay for any partial work day.
Employers also have some flexibility if a storm delays the processing and delivery of wage payments to employees, as Florida does not have a law governing the frequency of wage payments. However, if an employer has employees outside of Florida, the employer should take note of the laws of those other jurisdictions regarding the frequency of salary payments to employees.
Employees affected by a hurricane may request protected leave under the Family and Medical Leave Act (“FMLA”) for any serious health problem caused by the hurricane or when the employee has to take care of a hurricane. child, spouse or parent with a serious health problem. Even if the employee is not covered by any federal, state or local laws (such as the Dade County Family and Medical Leave Ordinance, Sections 11A-29 et seq.) That allow leave for injury or illness , employers must assess whether an employee may be eligible for leave under one of the employer’s policies or under a collective agreement. Ultimately, if the employer changes the way they apply their leave policies due to a hurricane, the employer must ensure that any changes to the application are applied consistently to all employees. and that the employer’s actions are always supported by legitimate and non-discriminatory reasons.
If a business is unable to reopen for an extended period following a storm, the effect on employee benefits such as paid vacation and health insurance is quite complex and needs to be decided on a factual in accordance with ERISA, FMLA, COBRA and other laws. In addition, federal WARN law imposes 60-day notice requirements on employers with 100 or more employees for certain plant closures and mass layoffs. When a plant closure or mass redundancy results from a natural disaster, the employer is required to give as much notice as possible. Employers outside of Florida may be required to comply with the “mini-WARN” laws of other states.
The considerations set out above are just examples of a few of the many legal issues that could arise and lead to potential legal liability on the part of an employer in the event of a hurricane. Additional problems may arise under the Americans with Disabilities Act, the Occupational Safety and Health Act, the National Labor Relations Act, and unemployment laws, to name a few, employers should consult their labor lawyer to ensure compliance with best practices and limit legal exposure.