There are many manuals and publications about what companies should do to plan for natural and manmade disasters, from preparing for infrastructure disruptions to communicating with employees and the public. Another requirement is that management must maintain awareness of their responsibility for adhering to employment laws and regulations even in the face of crisis.
“How an employer navigates a significant crisis can have a lasting impact on business operations, its reputation with customers, and more importantly its employees,” observes Hal Shillingstad, an attorney with the law firm of Ogletree Deakins. “A myriad of legal issues will arise during the immediate aftermath of a disaster or crisis but also in the days, weeks and months that follow.”
Among the legal issues employers have to grapple with are:
● Nonexempt employees must still be paid for work performed in accordance with law. Your nonexempt employees will likely earn overtime compensation as increased demands are placed on them to cover for other employees during a crisis. If employees work from home or do other work away from the business premises, they must be compensated as well.
● If an employee cannot make it to work due to disaster-related transportation issues, that may be considered an absence for personal reasons under the Fair Labor Standards Act (FLSA)—so long as the employee does not work from home.
● Exempt employees must still be paid for an entire week even when they work only a portion of a work week and even if the location is closed for part of the week because of a natural disaster. If the facility is closed for one week or more and no work is performed, the employer has no obligation to pay an employee who does not perform any work.
● It may seem an unreasonable burden when you are in the midst of dealing with a crisis, but the FLSA does not provide any relief from its record-keeping requirements due to emergencies, and employers must continue to maintain records of time worked. Employers should instruct workers who normally track time worked electronically to manually record the times, Shillingstad notes.
● The Worker Adjustment and Retraining Notification (WARN) Act includes an exception for natural disasters when a plant location closes due to a natural disaster. Nevertheless, if possible, an employer will want to follow the law’s notification requirements if possible.
“You Gotta Be Human”
● Employers may need to grant qualifying employees leave under the Family and Medical Leave Act (FMLA) if they have developed a serious health condition as the result of a natural disaster. “Remember, employees also may qualify for leave if they need to care for a spouse, parent or child suffering a serious health condition or medical emergency caused by the disaster,” Shillingstad adds.
● Employers who are continuing health and other insurance coverage for their employees should contact their benefits vendors to determine how and to what extent coverage is to be maintained.
These vendors often have specific hotlines for their customers to contact during a disaster because they know life, health and disability coverages will be impacted. Employers must meet the continuing health coverage requirements under the Consolidated Omnibus Budget Reconciliation Act (COBRA) for employees who are no longer working or have been discharged.
● When it comes to workplace safety, keep in mind that under the law employers are generally responsible for protecting their employees from all unreasonable dangers, regardless of the circumstances. During natural disasters, employers need to ensure the safety of their employees who are working in and around a damaged workplace.
In particular, employers should protect workers from unreasonable exposure to hazards that may be present as a result of a natural disaster, such as slip and fall hazards, electrical exposures and even exhaustion from working extended shifts. Personal protective equipment (PPE) should continue to be made available and employees directed to put such equipment to use.
● Some of your employees may be emergency responders, such as members of the National Guard or volunteer responders, who can be called up for duty by the state governor or President of the United States in the midst of a natural or manmade crisis. Job protections are in place for these employees and some state laws may be as well, Shillingstad warns, and some state laws may address unique situations.
He stresses that while adhering to the law and following the steps outlined in any disaster plan, management must keep in mind the high human costs borne by many of their employees.
“Employers should not lose sight that those who work in their businesses may need support in many ways during a crisis,” Shillingstad advises. “For this reason, employers may need to adapt to the needs of their employees to the extent possible. Employers may find that being supportive, reasonable and understanding with its workforce during these critical times is the best course of action.”
Or as the stock detective Henry Beige—played by Slim Pickens in the movie “Rancho Deluxe”—famously declared, “If you’re dealin’ with people, you gotta be human.”