The following is general HR guidance to assist businesses that may be impacted by Hurricane Michael in Florida, Alabama, and surrounding areas.
Safety First/ Workers’ Comp
In the wake of hurricanes and natural disasters, employers face a new host of employee safety issues.
If your employees continue to work either in relief or recovery efforts that support your business, they still fall under the protections afforded by workers’ compensation insurance; safety must remain a top priority.
If employees choose to work remotely, they also remain covered by workers’ compensation. The most important safety tip employers can provide to employees is to be aware of their surroundings. Awareness of the environment and changing conditions are critical. Consistently conduct quick hazard assessments and never take any excess or unnecessary risks (e.g., driving in flooded areas).
Office Closures – OSHA Rules
Regarding whether the employer must close for business - according to OSHA, any "substantial threat" posed by an imminent natural phenomenon would entail a judgement by the employer and involve OSHA’s General Duty Clause to enforce issues concerning weather. Under the clause, employers are required to provide their employees with a place of employment that "is free from recognizable hazards that are likely to cause death or serious harm to employees." The courts have interpreted OSHA's general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous.
Wage and Hour Issues: Non-Exempt and Exempt Workers
If you decide to close for business and if you are unable to provide work to employees due to a natural disaster, an employer is required to pay Non-exempt employees only for the time they have worked; if the Non-exempt employees have not worked then payment is not required. The exception to this is if an employee is “on call” on the employer’s premises and unable to use his/her time for non-work related purposes.
For exempt employees, an employer will be required to pay the employee’s full salary if the worksite is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. However, an employer may require exempt employees to use allowed paid time off for this time.
If you are open for business and an exempt employee chooses to stay home because of weather, the Department of Labor considers an absence caused by transportation difficulties experienced during weather emergencies as an absence for personal reasons. Under this circumstance, an employer may place an exempt employee on leave without pay (or require the employee to use accrued paid time off) for the full day that he or she fails to report to work.
If an employee is absent for one or more full days for personal reasons, the employee’s salaried status will not be affected if deductions are made from a salary for such absences. However, a deduction from salary for less than a full-day’s absence is not permitted under these circumstances.
Other Considerations
Declaration of a State of Emergency
In the event the State government declares a “State of Emergency,” the employer’s obligations generally do not change. While some states may offer additional protection to employees from being terminated for electing to stay home during severe weather or other emergencies, Florida and Alabama do not. Nevertheless, employers are encouraged to be flexible and considerate with employee requests when it comes to restrictive attendance and leave policies. In these circumstances, it would be acceptable to temporarily relax or make exceptions to these policies, so long as these measures are not implemented in a discriminatory manner.
Unemployment Benefits
In rare circumstances, employees may be entitled to collect unemployment benefits if they are displaced or out of work for a prolonged period of time due to severe weather.
Protection for Relief Workers – USERAA
Employees may also be absent from work due to their role in the relief efforts. Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which effectively applies to every public and private employer and has no minimum employee requirement, employees may be entitled to a leave of absence for service in the uniformed services. This applies to employees who are members of the Uniformed Services or National Guard and are activated under orders of the President for disaster relief and emergency assistance.
Employers may not discharge or otherwise discriminate against an employee for leaving company premises to participate in a general public evacuation ordered under an emergency evacuation order. An emergency evacuation order is a statement from a governing body recommending the evacuation of all or part of the population of an area stricken or threatened with an emergency or disaster.
Other Leave
Employees may be entitled to use leave time or require reasonable accommodations to cope with the aftermath of this storm. Managers should be aware of their leave policies to include leave provided under the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) for employees affected by Hurricane Michael.
Also, employees may have property that is damaged, may live in an area that makes it more difficult to come to work, or may expect for your business to be closed. Therefore, if you are considering staying open, you may need to allow exceptions to attendance policies.