The Loop

Natural Disaster Leave

Filed under: Benefits

In a recent report, the National Oceanic & Atmospheric Administration (NOAA) concluded that in the future it is likely greenhouse warming will cause hurricanes to be more intense and produce higher rainfall rates than what we're experiencing today. For the 2019 season, the NOAA predicts eight to 13 hurricanes in the US; four to eight are expected to be major events.

While tracking weather forecasts may not be a company priority, the recent spate of storms and flooding have clearly had an impact on America's businesses, regardless of industry. Not only do storms precipitate revenue declines, but that loss of revenue is exacerbated by productivity losses when a business is forced to close, or workers are unable to report to their jobs due to inclement weather.

When it comes to personnel, are workers eligible for leave and what are employer requirements for paying wages during a natural disaster?

Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) does not require an employer to pay exempt employees if the business is closed for a full workweek. However, employers must pay exempt employees under the following conditions if the business closes for less than a full workweek:

  • If the business closes due to inclement weather (e.g., rain, snow, or other emergency) employees must be paid their full, normal salary.
  • Employers may not deduct pay for absences caused by the operating requirements of the business if the employee is willing and able to work.
  • If the business closes at any point during the work day, exempt employees must be paid their full salary. This applies even if no emergency is declared or because the business closes out of concern for its employees.
  • If the business asks exempt employees to work from home in lieu of coming into work, they should be paid at regular salary and not required to use paid time off.
  • Private employers may deduct this pay from an exempt employee's leave bank for any days that the worksite was closed, whether for full-day or partial-day absences, as long as the employee receives full pay.

Non-exempt (hourly) workers must be paid under the following conditions:

  • No less than the federal minimum wage for any hours worked
  • Any hours worked even if the business decides to close part way through a day
  • Overtime at one-and-a-half times the regular rate of pay for all hours worked in excess of 40 in a week
  • Some states require an employer to pay non-exempt employees for at least a minimum number of hours if they have reported for work on a day the company closes due to inclement weather

Note that these requirements may not be waived due to a natural disaster and/or subsequent recovery efforts. However, if non-exempt workers do not report to work or if the business is closed due to inclement weather, the employer is not required to pay them.

Under federal law, employers may require both non-exempt and exempt employees to use accrued paid time off for the time missed due to inclement weather. However, any exempt employees that do not have any accrued paid time off must still be paid their full salary as long as they have worked at any time during that week. Be aware that some states and local jurisdictions do not allow employers to substitute paid leave for these situations, so it is critical to understand and comply with state law.

Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) applies to all local, state and federal government employers and private businesses with 50 or more workers within 75 miles. Although employers are not required to provide employees time off for activities such as cleaning up damage to their home or searching for a missing relative, the Family Medical Leave Act (FMLA) does provide for certain situations in which an employee may qualify for legally-protected leave after a natural disaster. This includes when the trauma of a natural disaster leads to:

  • Physical injury
  • Flare up of a chronic condition, such as high blood pressure or asthma
  • A mental condition, such as stress, anxiety, depression or PTSD

The FMLA-eligible condition may apply to either the employee or a close family member (e.g., child, spouse, parent) to whom the worker must attend. The condition must be severe enough that it meets the definition of a "serious health condition" and renders the worker unable to perform her job.

To assist the worker to be eligible for FMLA leave, employers should provide the requisite paperwork and request that the worker submit the necessary information to support the leave claim. The employee is responsible for making sure that medical certification is sufficient to cover the absence, follow up to obtain the necessary information, and employers have the right to seek a second opinion to ensure the FMLA leave is appropriate.

Be aware that if a business must close for a week or more in the wake of a natural disaster, the time that the business is shuttered may not count against an employee's FMLA leave allotment, even if he would have been unable to work had the business remained open.

The Americans with Disabilities Act
Employers are required to grant work-leave to employees who qualify under the Americans with Disabilities Act (ADA). In the case of a natural disaster, this provision may apply to workers with a mental or physical disability that is impacted by the event. The worker should be permitted to use his accrued paid vacation or sick leave as-needed, or may be granted additional unpaid leave as an accommodation.

To help verify an ADA claim, the employer may request limited medical documentation to confirm that the worker has a disability, determine how much leave is needed, and consider accommodation options. This medical information must be kept confidential and in a separate file from other employment records. Note that the ADA applies to employers with 15 or more workers.

Personnel Policies
Whether exempt or hourly, recognize that employees may have to miss work for reasons out of their control and may be operating under stressful circumstances due to the nature of the natural disaster. As a gesture of compassion and acknowledgement of their circumstances, an employer may want to consider paying these workers for all or part of days missed.

After all, the key to restoring operations as quickly as possible is to get employees back to work and up to full productivity as soon as possible after a storm. If the company's pay policy causes workers to become disgruntled or even seek another job, the subsequent loss of productivity may be far more detrimental than paying wages above and beyond paid-leave.

One way to facilitate goodwill and company loyalty is to communicate both pay and operating procedures before a crisis situation. Organizations should have a written policy in place and communicate those processes and procedures prior to any known natural disaster event. Such a policy should address questions like:

  • What constitutes an inclement weather day?
  • How will employees be contacted?
  • What should an employee do when she cannot make it to work due to weather?
  • How will work responsibilities be covered?
  • What are the organization's pay policies for exempt and non-exempt workers?

If there was only one reason for a business to track the weather forecast, it would be to communicate the company policy in advance of a potential crisis. Workers should be clear about what to do and how they will be paid during a critical and high-stress situation.

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