Author: Melissa Burdorf, XpertHR Legal Editor
When a natural disaster strikes, employers are faced with many challenging decisions - many of which involve leaves of absence. For example, some employees may request time off to repair their homes or helped loved ones who sustained damages to their homes. Other employees may experience an illness as a result of the disaster or have a family member who suffers from a serious health condition. When such difficult situations arise, employers must keep in mind the various federal and state leave laws as well as the employer's leave policies - such policies and practices should be applied uniformly and compassionately, paying attention to the emotional component that arises during such challenging times.
Below is some guidance surrounding some of the leave issues that may arise during natural disasters- this guidance is meant to help employers clearly, consistently and empathetically handle the various leave issues in an expedient fashion.
Does the FMLA Provide a Right for Leave After a Natural Disaster?
Generally, the FMLA does not require employers to provide leave in order for employees to manage their personal situations (i.e. cleaning a flooded basement, helping an elderly parent save their personal effects, or looking for missing friends or family) that result from a natural disaster. However, employers may voluntarily provide leave under their company policies.
There are times, however, that employees affected by a natural disaster may be entitled to FMLA leave. For example, the FMLA will apply in cases where an employee:
- Suffers from a physical or mental illness or injury that meets the FMLA's definition of a serious health condition which renders the employee unable to perform their job.
- Must provide care for a spouse, child or parent with a serious health condition who is affected by the natural disaster. For example, if an employee has a parent who suffers from a respiratory disease and that parent's power went out - so his or her respirator cannot function - the employee may need to assist the parent with his or her medical equipment (this is different from an employee helping a parent clean out his or her flooded basement which would likely not be covered under FMLA). In nonmedical absence request situations (such as storm cleanup), employers should check their policies to let the employee know what his or her options are.
- Has a chronic condition, such as severe back pain, that flares up in inclement weather, rendering them unable to perform their job - and their medical certification supports the need for leave.
Handling an Employee Who is on FMLA Leave When a Natural Disaster Hits
The FMLA address situations that cause an employer's business activity to temporarily cease - where employees are not generally expected to go to work for one or more weeks (for example, a school closes for summer or an employer closes a plant for repairs). In those situations, the days the employer's activities have ceased do not count against an employee's FMLA leave entitlement.
So, if an employee is on FMLA during a natural disaster - and the employer ceases business operations for a week or more - the employee's time off during this period will not be charged to his or her FMLA entitlement because the employer was not operating and the employee would have been given the time off from work anyway. Employers cannot count time against the employee' FMLA entitlement even if they know the employee would not have been able to perform his or her job duties during the disaster time period.
If an employer is closed for less than one week, the FMLA rules surrounding holidays apply. Such rules state that holidays that occur within a full workweek taken as FMLA leave have no bearing on the calculation of the amount of leave used by an employee during that week; the week should be counted as a full workweek of FMLA leave. Therefore, if a business is closed because of a natural disaster for one day during a week in which an employee is on FMLA leave, the entire week will count against the employee's FMLA leave allotment.
If the employee uses FMLA of increments of less than one week, a holiday falling within a particular week may not be counted against the employee's FMLA leave entitlement unless the employee was otherwise scheduled and expected to work during that holiday. Therefore, if a business is closed because of a natural disaster for less than one week, only the days that the business is closed on which the employee would be expected to work can be counted against the employee's entitlement.
The ADA's Role During a Natural Disaster.
Some FMLA impairments may also constitute a disability under the Americans with Disabilities Act (ADA). For example, employers may need to provide an employee with a reasonable ADA accommodation (such as telecommuting) if the employee suffers from post-traumatic stress disorder (PTSD), a debilitating condition that resulted after the employee's exposure to a terrifying event, such as a natural disaster. The EEOC has explained that some types of impairments, such as PTSD will, in virtually all cases, result in a finding that the impairment substantially limits a major life activity. The Job Accommodation Network (JAN), a source of free guidance on workplace accommodations and disability-related employment issues, provides information regarding the ADA and PTSD.
Employers must also be prepared for natural disasters that strike while employees are at work. Employers should have emergency procedures in place to ensure the safe evacuation of all employees. The ADA requires that employees with disabilities benefit from the same level of safety and security as their coworkers without disabilities. Therefore, an emergency response plan should include the prompt and effective assistance to individuals with known medical conditions/disabilities.
In order to ensure an emergency response plan effectively addresses employees with disabilities, employers should request that employees voluntarily self-identify if they will require assistance in an emergency because of a medical condition or disability. Employers should also ask such employees to describe the type of assistance they think they will need. Employers should advise individuals who self-identify that the information they provide will be kept confidential to the extent legally possible and shared only with those who have responsibilities under the emergency evacuation plan, such as first aid and safety personnel. The EEOC offers additional guidance on this topic.
State Leave Laws
Injured employees and caregivers may not be the only ones requesting or entitled to leave. While no federal law addresses a private employee's ability to take time off to provide aid or to volunteer during a national emergency or disaster, several state have enacted laws that address the right of an employee of a private employer to take unpaid natural or other disaster services leave. See Employee Leaves > Other Leaves: State Requirements.
Generally, these laws apply to employees who qualify as:
- Volunteer firefighters;
- Rescue squad members;
- Emergency medical technicians;
- Reserve peace officers; and
- Emergency rescue personnel.
Some states require employers to provide the above-referenced 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.
Employers in states with require such leave should have a written policy that is communicated to all employees. When developing such policies employers should consider if the policy includes time off for the employee to train, participate in drills or practice exercises and whether such time off is paid. Employers should require that the employee not only receive the appropriate certification (e.g., from the American Red Cross) but also notify the employer that he or she has been certified before time off will be granted.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) May Also Come Into Play.
USERRA may apply in times of natural disasters if an employer has employees that are part of an emergency services organization (such as the National Guard or a Reserve unit). While USERRA does require advance and timely notice of military service, in the event of a natural disaster, such notice will likely be short notice. The notice may be written or oral and it may be provided by the employee or an appropriate officer of the military branch in which the employee is providing uniformed service.SeeEmployee Leaves > USERRA.
Employers cannot terminate, deny a promotion or deny any benefit of employment because of the employee's membership, performance of service or obligation to perform service in uniformed service.
Cases that Necessitate Bereavement Leave
Unfortunately, some natural disasters will result in death - either of an employee or of the employee's loved one. Even though bereavement leave is not required by federal or state law, many private employers voluntarily offer some amount of paid time off to attend funerals. Most employers also offer additional time off for employees who need time to grieve.
A bereavement leave policy that addresses the time off that an employee will certainly need to take upon the death of a family member can be invaluable during this stressful time and ease an employer's administrative duties. See Bereavement Leave Policy.
When employers face the death of one of their own employees the employer should ensure that managers and HR personnel are equipped with information on how to deal with these unfortunate circumstances and are capable of implementing the necessary tools to assist other employees during this period. See Managing an Employee's Bereavement and Bereavement Leave - Supervisor Briefing.
Employers should also be aware that while bereavement for the death of a relative is not automatically covered by the FMLA, under certain circumstances, employees may be eligible for FMLA leave. For example, if the employee is depressed and that depression meets the FMLA's definition of a serious health condition or the employee is caring for a relative who has a serious physical or mental health condition as a result of the family member's death. In addition, an employee may develop a physical or mental disability as a result of the employee's grief, which may qualify under the ADA. See Employee Leaves > FMLA; Employee Management > Disabilities (ADA); How to Deal With Grieving Employees
Leave Donation or Leave Sharing Programs
During an emotional and financial crisis caused by natural disasters - many employees look to voluntarily share or donate their unused leave, especially paid leave, to other employees who were affected by the natural disaster. The IRS and the Treasury Department have stated that employees may "donate their vacation, sick or personal leave in exchange for employer cash payments made to qualified tax-exempt organizations providing relief for victims of Hurricane Sandy." Such donated leave will not be included in the income or wages of employees.
Employers can arrange leave sharing banks or pools to allow donated leave to be used in the time of a natural or "major" disaster. The IRS provides employers with guidance for creating these banks/pools in a manner to avoid an unfavorable tax result.See also Hurricane Sandy: IRS Permits Tax Relief for Leave-Based Donations Programs.
Employers should be careful to review their state leave laws when creating or implementing these programs.
Additional Tips for Employers
If an employee requests leave as a result of the natural disaster, employers should ask the employee for enough information to determine whether the absence qualifies as protected FMLA or other state or company provided for leave. Employers should provide the necessary FMLA or other documentation (such as a certification) and give the employee the necessary time to provide such documentation. Also, once an employer receives the employee's documentation it should check that the documentation shows that the employee is covered under the FMLA or other state or company provided leave. If it is unclear whether the employee is entitled to leave, the employer should follow up with an employee to obtain the information necessary to designate the absence as FMLA or other protected leave.
Employers should carefully and uniformly administer their leave policies and the various laws that protect employees who are physically or mentally affected by a natural disaster. Employer must also understand that it is likely that they will face increased absences during a natural disaster. Therefore, supervisors and managers must be trained so that they are knowledgeable enough to apply policies correctly and to know when to refer employees to HR.