Authors: Melissa Burdorf, Michael Cardman, Michael C. Jacobson, Marta Moakley, Tracy Morley and Ashley Shaw, XpertHR Legal Editors

Overview

XpertHR's editors have compiled a list of available resources to help employers manage the myriad of employment challenges that natural disasters such as hurricanes spawn, including Fair Labor Standards Act issues, employee leaves and employee benefit needs before, during and after such events.

Table of Contents

Emergency Preparedness and Workplace Safety

Having a plan to ensure safety and security, as well as to continue business operations after an emergency situation, is the best way to make things go smoothly when uncontrollable natural forces strike. Not only should employers have an effective business continuity policy in place, but should also have an emergency response plan. Those plans should be tailored to deal with specific natural disasters, such as tornados, hurricanes and flooding.

Employers' emergency response plans should comply with the Americans With Disabilities Act (ADA). The ADA requires that employees with disabilities benefit from the same level of safety and security as their coworkers without disabilities. Therefore, employers' emergency preparedness plans should include a process addressing reasonable accommodations for employees with disabilities.

HR managers should also ensure employers have appropriate insurance and should play a key role in selecting the best insurance to help in these situations.

XpertHR has the following resources:

Employment Law Manual

Policies and Documents

How To

Wage and Hour

Even when it's business as usual, Fair Labor Standards Act (FLSA) compliance can be difficult. So, when there's a serious disruption in employers' normal business operations, FLSA compliance can seem impossible. During these disruptions, employers should carefully consider wage and hour issues.

First and foremost, HR should ensure that salaried, exempt employees continue to be paid their full salary unless the workplace is closed for a full workweek. In the event of an improper deduction, our sample salary basis policy can help limit liability. Note that exempt employees are allowed to perform nonexempt work during emergencies without forfeiting their exemptions.

HR also may wish to consider the requiring exempt employees to use paid time off during office closures.
In the event the workplace is closed, HR should be sure to notify employees of the closure; if employees show up to work anyway, many states, including Connecticut, Kansas, New Hampshire, New Jersey, Oregon and Utah, may require them to be paid for their time. Nonexempt employees also may need to be paid for commuting time during emergencies.

During emergency events, the following resources will help HR remain compliant with the FLSA and state wage and hours laws:

Employment Law Manual

Quick Reference

FAQs

Policies and Documents

Employee Leaves

Hurricanes and other natural disasters can often result in deaths and injuries. Therefore, some employees will require time off to grieve loved ones or to care for themselves or for family members. Affected employees may be entitled to leaves of absence under the federal Family and Medical Leave Act (FMLA) or applicable state laws.

Injured employees and caregivers may not be the only ones requesting or entitled to leave. Before, during or after an emergency, employees who are volunteer firefighters, reserve officers or certified disaster specialists may be absent or late for work. Certain states have laws requiring employers to provide those employees with time off to provide disaster relief services. Other states prohibit employers from terminating or discriminating against employees who take leave to participate in a general public evacuation ordered under an emergency evacuation order.

XpertHR has the following resources to help employers manage FMLA and other leaves of absence in emergency situations:

Employment Law Manual

How Tos

Policies and Documents

Supervisor Briefings

Employee Assistance Programs

Eligible employees may opt to take FMLA leave to deal with the psychological impact of natural disasters and other traumatic events. Employees who do not request, or are not eligible for FMLA leave, may solicit support from employers' employee assistance programs (EAPs).

EAPs provide a variety of health related and support services for employees. These programs typically offer counseling and referral services aimed at providing assistance for individuals faced with family and/or marital problems, substance abuse, work-related problems, stress management or any other challenge that has an impact on an employee's work or job performance.

EAPs may also provide critical incident stress counseling in the case of traumatic workplace events, including natural disasters. Experienced professionals can provide individual and/or group counseling to help employees cope with the emotional issues associated with these types of events. Offering these services through an EAP can help employers manage crisis situations and return to normal business operations.

XpertHR has the following helpful resource:

Employment Law Manual

Employee Communications

Employers should use all available means to communicate effectively with employees during business interruptions, inclement weather or natural disasters. Employees need to know whether they are expected to report to work, if the workplace is safe and if any leave will be made available as a result of the contingency. Employees may be forced to work remotely due to road closures or flight cancellations. Employers should also determine whether any relaxation of work rules, such as attendance policies, would be appropriate under the circumstances.

XpertHR offers the following resources to help its subscribers handle communications and discipline issues effectively:

Employment Law Manual

How To

Supervisor Briefings

Reductions in Force Under the WARN Act

The Worker Adjustment and Retraining Notification Act or "WARN Act" is a federal law that requires employers with more than 100 employees to provide 60 days' advance notice to employees of impending mass layoffs that meet certain conditions. However, when a plant closing is the direct result of a hurricane or other qualifying natural disasters, employers are obligated to provide "as much notice as reasonably possible" to the workers affected by the closure instead of the 60 days prior notice that would otherwise be required. Also, in the event of a natural disaster, employers can comply with the law's notification requirements by sending notices to employees' last known addresses, even if their homes are destroyed.

If a natural disaster like a hurricane completely destroys a worksite and all of its employment records, an employer can still comply with the WARN Act by posting notices at the worksite including a statement that individual notice is not possible because employment records have been lost or destroyed. Employers in this situation should also place a notice in the local newspaper(s) to the same effect.

As always, employers should be cognizant of both the federal WARN Act and any commensurate legislation in the state where the affected worksite exists.

XpertHR offers the following resources to help employers navigate WARN Act requirements after a natural disaster:

Quick Reference

Employment Law Manual