“Super storm” Sandy and the Nor’easter that ravaged so much of the Northeast reinforced for all of us the fragility of life and the importance of family and friends. Fundamental things like shelter, heat, food, water and gas evaporated overnight. Having “stuff” just didn’t seem to matter anymore.
Getting to work was difficult, if not impossible, for many. And, businesses large and small were significantly impacted by water or wind damage, as well as loss of power, systems, and Internet service. We were a society scrambling at home and at work.
All at once, employers were dealt a hand-full of employment issues that ranged from wage & hour questions to employee leaves and how to call-in essential employees for business continuity purposes. The following addresses some of the issues that frequently arise during and after hurricanes, storms and natural disasters.
When our business is closed due to a storm or natural disaster, are we required to pay employees?
Generally, employers are not required to pay employees who are nonexempt from the FLSA and related state laws. This rule is not applicable, however, if you have nonexempt employees on fluctuating workweeks, in which case you should consult with counsel.
Generally, employers are required to pay exempt employees’ full salary if the office or facility is unable to open for less than a full workweek. However, employers may require their exempt employees to use accrued paid leave. In the event employees do not have enough accrued paid leave to cover the closure, they must still be paid their full weekly salaries unless they performed no work at all during the entire work week
When our business reopens following a storm or natural disaster, are we required to pay employees who do not (or cannot) return to work?
When employees cannot make it to work due to commuting, travel, or public transportation difficulties experienced in the wake of storms and natural disasters, their absences are considered personal leaves if the office or facility is open for business.
Under these circumstances, nonexempt employees do not have to be paid. However, employers may allow these employees to use accrued paid leave.
Exempt employees must be paid their full weekly salary unless they miss a full day of work. If employees miss a full day of work for personal reasons, their salary may be reduced to reflect the full-day absence or they may be charged with the use of accrued paid time off. If employees are absent for one or more full days for personal reasons, their salaried status generally 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. Always consult with counsel before taking any deduction from salaried employees' pay.
When our office or facility is damaged and cannot reopen, what are our obligations to employees?
Generally, for employers with 100 or more employees, the WARN Act requires 60-day notice to employees of a facility closing or mass layoff. However, there is an exception for closings or layoffs that are a direct result of a natural disaster. Even in these circumstances, employers are required to give as much notice as practicable and, if it is less than 60 days', employers must be able to prove the direct result exception has been met. As a result, if your facility cannot reopen, consult with legal counsel about the possible notice requirements to ensure compliance with WARN and any local WARN Acts.
Employees who are laid off (temporarily or permanently) due to a storm or natural disaster are generally eligible for unemployment compensation. If employees are not eligible for regular unemployment compensation and the President of the U.S. has declared a major disaster, employees may be eligible for disaster unemployment assistance.
If employees work at home or review e-mails while our office or facility is closed, do we have to pay them?
Yes, employees who work remotely generally must be paid to the same extent as employees who work at the office or facility — even if they are not asked to work.
If employees arrive at work early or stay at work late due to weather, storm or commuter issues, do we have to pay them?
For exempt employees, if they work a longer day for any reason, their pay is not impacted. They need not be paid more if storm-related issues keep them at work.
For nonexempt employees, they must be paid for all time worked. If the employee arrives early and begins working before his or her regular work hour, or if he or she stays late and works after his or her regular work hours, that time must be paid. To avoid paying for this time, employers may instruct nonexempt employees not to perform work outside their regular work schedule unless they receive prior approval from a supervisor. Even under these circumstances, however, if an employee fails to obtain approval but performs work, he or she must still be paid for that time.
What if our employees’ travel time to the office increases significantly due to storm-related events, do we have to compensate them for that time?
Generally, travel to and from work is not compensable. The same is true if travel to or from work is elongated and longer than customary due to detours, closed roads, bridges or tunnels, or interruptions to public transportation. If the travel is during non-work hours and no work is performed during the travel, it is not compensable.
How do we pay employees who are required to be “on-call” for business continuity purposes?
The general rule is that if employees are on-call, but are free to leave or attend to personal matters at any time, they do not have to be paid. Under these circumstances, employees are waiting to be engaged, which is generally not work time. Employees who are required to remain on-call either at the employer’s office or facility, or nearby, are considered to be engaged to wait, which is working time and must be paid.
Keep in mind that many states have call-in or reporting pay requirements that must be met, such as payment for a minimum number of hours, whether or not they are working those minimum hours. Consult with counsel on the reporting pay requirements governing your office or facility.
What should we do about employees who volunteer to help out with the recovery efforts for our office or facility?
First, keep in mind that employees cannot volunteer to perform the same services that they regularly perform as part of their jobs. Quick examples are IT professionals or engineers who volunteer to perform work on weekends or after-hours to assist in repairing the employer’s systems or structures. They must be compensated for those services.
Employees who volunteer to perform services that are wholly outside of their job responsibilities may not have to be paid if the work is being performed outside regular work hours. If the volunteering occurs during regular work hours and benefits the employer, it must be paid. Therefore, if a nonexempt employee volunteers to help the employer with storm cleanup, the employee generally must be paid for his or her time (potentially including time spent donning and doffing protective gear) even if the employee agreed to work for free.
Generally, employers should be careful about allowing employees to volunteer not only because of the wage and hour issues that are created, but if the employees are injured while volunteering, they may not be covered by workers’ compensation laws, and may have the right to sue the employer for negligence.
What if employees return to work but are required to wait for some period of time after the start of the work day due to weather, utility or system interruptions?
If employees are required to wait, they must be paid.
What happens when employees are injured or become sick while working at transitional or temporary office locations?
If an employee is injured or suffers any kind of exposure while performing services for the employer, it does not matter if it is at a regular place of business or a temporary one. If employers establish a temporary worksite, they remain responsible for the health and safety of their employees. As such, these employees generally would be eligible for workers’ compensation coverage.
Do employees who suffer injuries or emotional distress due to a storm or its aftermath qualify for FMLA leave and/or ADA protection?
If employees, their children, spouses or parents are affected by a storm or natural disaster, the affected employees may be eligible for FMLA leave if the relevant condition qualifies as a serious health condition. A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.”
Similarly, if employees suffer from conditions that substantially limit a major life activity, they may be protected by the ADA. Keep in mind that many state laws have definitions of disability that are broader than the ADA so you should confer with counsel about an employee’s protected status under these circumstances.
If we send employees for medical treatment, do we have to pay them?
Generally, time spent waiting for and receiving medical attention at the direction of an employer during an employee’s regular work hours constitutes hours worked and must be paid.©2013 Greenberg Traurig, LLP. All rights reserved.
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