January 19, 2021

Volume XI, Number 19


January 19, 2021

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January 18, 2021

Subscribe to Latest Legal News and Analysis

Planning for a Catastrophe

With hurricane season upon us, employers are justifiably concerned about the potential impact of a natural disaster on their business. A hurricane, natural disaster, or any other crisis in the workplace can bring a business to a screeching halt and devastate the lives of a business’ most valuable asset, its employees.

To minimize the impact of a natural disaster, employers should have plans in place before disaster strikes, including, for example, a crisis management plan, a communication plan, and a disaster response and recovery plan. These plans must take into account the effect a catastrophe may have on workers and include ways to help impacted employees return to work as soon as practical to ensure continued productivity at the workplace even in the face of personal loss. Any enacted plan should consider the application of relevant federal and state laws to ensure compliance and avoid any employment-related lawsuits or any agency enforcement action following a natural disaster.

Determine individual crisis management responsibilities. Employers should identify those employees that are essential to a business function and determine whether the employees will be needed on-site in the days preceding and following a natural disaster. Employers should also identify all other non-essential employees who may also be needed on-site preceding and following the disaster. Employers should develop a plan or meet with key employees to effectively communicate and identify areas of accountability and responsibility for key personnel and how each employee should perform his or her emergency-response duties effectively.

Communicate with employees before disaster strikes. Employers should communicate their disaster plans with all employees and ensure that everyone understands their respective roles, responsibilities, and expectations. Employers should be consistent in their communication with employees about any disaster plan. Doing so will help avoid confusion and will prevent employees from having different understandings of the situation or the roles and duties expected of each.

Establish clear communication channels. In the days leading up to a hurricane or other natural disaster, all employees should know the appropriate channels of communication for when disaster strikes, including, for example, an inclement weather hot-line to inquire about weather conditions and the corresponding status of the office and expected attendance from employees. This will ensure consistent and effective communication with employees, leaving no question as to their expected attendance or confusion as to where to go to obtain important information concerning the workplace. Employers should organize this plan ahead of time and be proactive in communicating the importance of the assigned channels of communication to all employees.

Keep leadership visible. Employers should make sure that all employees know the company’s line of communication for when disaster strikes, as well as who is in charge of each aspect of the company’s response and recovery effort—and what those efforts are. Effective communication and direction from management preceding, during, and following a natural disaster will not only ensure that all employees stay on the same page, it will also instill confidence and a sense of stability for employees. Disarray during a natural disaster not only creates havoc for an employer, but it can also lead to a higher incidence of attrition following a disaster as loyal and valuable employees may sense that the company is disorganized, lacks leadership or is not prepared to handle difficult times. While employers sometimes make mistakes during unexpected difficulties, consistency will be better established if company management takes an active role. Furthermore, restoring order and direction will give employees the confidence to stay with the company and work together while responding to and recovering from the disaster.

Working remotely. After a natural disaster, it may be necessary for employers to permit some employees to work remotely. If an employer does this, it should set up a system for those employees working remotely to keep track of their time or report their hours worked at home in the days preceding and following a natural disaster. If an employer does not have a proper mechanism to capture time worked remotely, it can be exposed to liability under the FLSA, state, or local wage and hour laws.

Be familiar with federal, state, and local laws. Employers should be cognizant of the federal, state, and local laws that can be implicated during and after a natural disaster. These laws can shape the workplace policies surrounding disaster planning and recovery efforts. Some laws that employers should be familiar with include the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Worker Adjustment and Retraining Notification Act (WARN).

The Fair Labor Standards Act (FLSA) distinguishes between exempt and nonexempt employees. The FLSA requires employers to pay an exempt employee’s full salary if the employee works less than a full workweek as the result of a natural disaster, whereas an employer is only required to pay a nonexempt employee for hours that the employee has actually worked. Thus, an employer is not required to pay a nonexempt employee if the employer is unable to provide work to that employee because of a natural disaster. There are exceptions to these rules. It is therefore advisable to consult with legal counsel to ensure compliance with the FLSA. Employers should also consult their state and local laws to determine whether such laws provide employee protections beyond the FLSA.

Employers should also be cognizant of the FLSA when deciding whether to allow employees to volunteer with the employer for any recovery efforts after a natural disaster. The FLSA may require compensation for volunteer time depending on the work performed by volunteer employees. In addition, other federal, state, and local laws may apply and impose certain obligation on employers when employees volunteer for hurricane relief efforts for other entities and miss work as a result.

Under the Family and Medical Leave Act (FMLA), employers may need to grant qualifying employees leave if they are unable to work due to a serious health condition resulting from a natural disaster. Employees may also qualify for FMLA leave if they need to care for a spouse, parent, or child suffering from a serious health condition or medical emergency caused by the natural disaster.

Under the Americans with Disabilities Act (ADA), employees who become physically injured, or suffer trauma from the natural disaster, including anxiety, depression, or a mental illness, may be entitled to reasonable accommodation by the employer as long as it would not place an undue hardship on the operation of the employer’s business.

The Worker Adjustment and Retraining Notification Act (WARN) imposes notice requirements on employers with 100 or more employees in advance of certain plant closings and mass layoffs. The WARN Act includes an exception for natural disasters when a plant location closes due to a natural disaster, but the employer must still give as much notice to its employees as is “practicable.” The WARN Act is very complicated; so employers contemplating a facility closure or layoff as the result of a disaster should consult with labor counsel before proceeding.

While all states do not have a similar statute or regulation, under the Texas Labor Code, employers in Texas may not discharge or discriminate against employees who evacuate under public emergency evacuation orders. Employers who violate this provision are liable for any loss of wages or employer-provided benefits and must reinstate the employee to the same or equivalent position.

Train managers and supervisors on how to manage employees coping with the effects of a workplace crisis. When employees return to work following a hurricane or other natural disaster, managers and supervisors are the people who deal directly with employees. It is important to educate managers and supervisors ahead of time about the possible effects of a crisis or disaster on employees and how to spot indicators of emotional or behavioral conditions that may need attention. Employers may need to hire a consultant to meet with managers and supervisors, or employers might take advantage of free booklets and services provided by the government or private relief organizations. At a minimum, managers and supervisors should know to refer affected employees to an employee assistance program (EAP) or HR for the identification of other sources of professional assistance.

Employee Safety—OSHA. Employers must exercise caution and be in compliance with all OSHA regulations when asking employees to assist with preparing for and/or cleaning up after a natural disaster. Employers should ensure that their workers have the necessary equipment, know where to go, and know how to keep themselves safe when an emergency occurs. https://www.osha.gov/SLTC/emergencypreparedness/

Finally, cut employees some slack. While employers need not replace order with chaos, employers should treat employees fairly and with compassion when it comes to getting things back on track. Employees will likely need some time to get their personal lives in order, whether they need time to grieve for loved ones, make housing or financial arrangements, or seek medical attention. Employers should revisit their leave policies and benefits to determine whether the nature of the crisis warrants a revision or extended leave or benefits. Policies should be applied uniformly. Employers should avoid jumping to conclusions if an employee misses work, makes a mistake, or does not seem his or her usual self. Consider EAP referrals or other benefits if an employee appears to be slipping in performance or behavior.

Stephanie Gilliam and Veronica Rivas-Molloy also wrote this article. 

© 2020 Jones Walker LLPNational Law Review, Volume VIII, Number 170



About this Author

H. Mark Adams Employment Attorney Jones Walker

For more than 30 years, Mark Adams has defended employers in all manners of employment claims and litigation before federal and state courts and regulatory agencies. Drawing on his experience, he counsels employers on the development of effective human resources policies, procedures, and strategies for complying with federal and state labor and employment laws and limiting exposure to employment claims and litigation, union organizing, and government agency investigations. Mr. Adams founded Jones Walker's Labor & Employment Practice Group and served as its chair...

Jane H. Heidingsfelder, Jones Walker, MSHA Employer Representation Lawyer, Injury Reporting Policy Attorney

Jane Heidingsfelder is a partner in the firm's Labor & Employment Practice Group in the New Orleans office. She has extensive experience representing clients in a wide array of industries before the Occupational Safety & Health Administration ("OSHA") and Mine Safety & Health Administration ("MSHA"). In particular, she is frequently asked to assist companies during on-site safety and health investigations, as well as in subsequent litigation with the Department of Labor. 

Ms. Heidingsfelder has defended clients in state and federal...