This is a good time for HR professionals and business owners to be reminded of employees compensation and leaves when natural disasters strike.
Recently we have all witnessed the devastating impact of hurricanes Harvey and Irma, and perhaps more to come. Whether it be from afar, or it directly affects our employees, we want to do whatever we can to help. Many businesses have been damaged or destroyed, while others have closed temporarily for safety and security reasons. These businesses may remain closed, or operate with limited hours, for days, weeks, or possibly months. When such closures occur, we must consider business needs and what our obligations are.
The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees only for hours that the employees have actually worked. Therefore, an employer is not required to pay non-exempt employees if the employer is unable to provide work to those employees due to a natural disaster. However, in California, you are required to compensate non-exempt employees under call-in or reporting pay laws, especially if the employees were not advised that they should not report to work and were denied work upon arrival at the workplace. You are also required to pay non-exempt employees for waiting-time. For example, if the power goes out and employees are required to wait on premise until the power comes back on.
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 paid time off or accrued vacation time. If an exempt employee can not get to work because of a disaster, this is considered an absence for personal reasons and the employer can place the employee on unpaid leave or require the employee to use a vacation day for full days.
A deduction from salary for less than a full day's absence is not permitted, although the employer may make a partial daytime deduction from the employee's leave bank (if there is insufficient time in the leave bank, no deduction from salary can be made).
There is an exception to the Worker Adjustment and Retraining Notification Act (WARN) Act for natural disasters. If a plant or operating location is closed or there is a layoff as a direct result of a natural disaster, the employer is not required to give the 60 days notice required under the WARN Act. Nonetheless, the employer is required to give as much notice as is practicable. If an employer gives less than 60 days' notice, the employer must prove that the conditions for the exception have been met.
If your company is subject to the Family Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), employees affected by a natural disaster are entitled to leave under FMLA or CFRA for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse, or parent with a serious health condition may also be entitled to leave under the FMLA and CFRA.
For those employees who are also part of an emergency services organization (such as the National Guard or a Reserve unit), the USERRA may apply. USERRA prohibits discharging, denying initial employment, denying promotion or denying any benefit of employment because of a person's membership, performance of service or obligation to perform service in uniformed service.
Don’t forget the Americans with Disabilities Act (ADA). Under the ADA, employees who are physically or emotionally injured as the result of a catastrophe may be entitled to reasonable accommodation by the employer as long as it would not place undue hardship on the operation of the employer's business.
Also, consider safety issues. Employers are responsible to protect employees from unreasonable danger in the workplace, which includes an imminent "natural phenomenon" that will threaten employee safety and health. Hurricanes and other disasters may present obvious safety concerns that employers need to consider when asking employees to come into work during adverse weather, including vehicle accidents, slips and falls, flying objects, electrical hazards from downed power lines, exhaustion from working extended shifts and dehydration.
During what can be a difficult time for your employees, employers should do their best to remain sensitive to the physical and emotional needs of their employees. Communication is key as well as fostering a “we’re in this together” spirit. Companies may sponsor donation efforts for which they will match funds collected, or hold food or clothing drives. Some companies may also encourage employees to volunteer for relief effort by providing paid time off to do so. Employers who maintain leave banks may also allow employees to donate leave to other employees who need time off to deal with disaster issues or who are volunteering for relief efforts.
Lauren Sims is the article author and the Director of Human Resources Consulting for eqHR Solutions.
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