Planning for Hurricane Season - Employers Emergency Preparedness Plans

Hurricane season just began on June 1, 2011 and will last until November 30, 2011. Experts have predicted that this season will be busier than usual, so prudent employers may wish to institute (or update) emergency preparedness plans to ensure employee safety, continuity of operations, and records and asset preservation. However, it is also important for employers to consider potential legal issues and liability that could arise before, during and after a major storm.

Before the Storm.

One issue an employer may face prior to a hurricane is whether it can require employees to report to work despite the hurricane, and whether the employer may take adverse action against an employee who fails to report to work because of the hurricane. Florida case law indicates that an employer likely can require an employee to report to work, even where an evacuation order for the area has been issued. In Gillyard v. Delta Health Group, Inc., 757 So. 2d 601 (Fla. 5th DCA 2000), the Florida Fifth District Court of Appeals dismissed an employee’s complaint against her former employer, who terminated her employment when she failed to report to work following the issuance of mandatory evacuation orders because of severe fires. Of course, employers should prioritize the safety of employees, and should also consider the risk of liability where an employee is injured as a result of working in unsafe conditions.

During the Storm.

Where employees are excused from work as a result 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 any non-working time. An employer is required to continue to pay exempt employees for their time away from work during the hurricane, but may require such employees to use leave time.

When an employee is called up by the National Guard or Reserves to participate in the storm response, either 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 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.

After the Storm.

Where an employee cannot report to work due to transportation difficulties experienced as the result of a storm, the absence is considered an absence for personal reasons under Department of Labor regulations. An employer does not have to pay a non-exempt employee for any work time missed as the result of transportation difficulties resulting from weather. An employer may place an exempt employee on leave without pay or require the employee to use accrued vacation time for the full day that he or she fails to report to work. However, an employer cannot make a deduction from the exempt employee’s salary for any absence less than a full day.

Employees affected by a hurricane may seek protected leave under the Family and Medical Leave Act (“FMLA”) for any serious health condition caused by the hurricane or where the employee must care for a child, spouse, or parent with a serious health condition.

If a business is unable to reopen for an extended period of time in the aftermath of a storm, the effect on employee benefits such as paid leave and health insurance is rather complex, and must be decided on a factual basis pursuant to ERISA, the FMLA, COBRA, and other laws. Furthermore, federal law imposes notice requirements on employers with one hundred or more employees for certain closings and layoffs. Where a closing or layoff is the result of a natural disaster, the employer is required to give as much notice as is practicable pursuant to the WARN Act.

The considerations set forth above are only examples of a few of the many legal issues that could arise and result in potential legal liability on the part of an employer in the face of a hurricane. Additional issues 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.