Natural disasters, like Hurricane Harvey, raise a host of issues for employers, regardless of whether these employers have a direct presence in the affected areas or whether they have employees residing in or telecommuting from them. Sometimes employers are forced to close or are able to remain open in some capacity, but employees are not able to travel to work or need to attend to emergent matters during or in the aftermath of these types of events. Some of the more commonly asked questions are addressed below.
1. If there is a forced closure of the workplace, must an employer pay its employees their wages during this shut down period?
Under the Fair Labor Standards Act and applicable state laws, non-exempt employees must be paid for all hours worked. In the event non-exempt employees are not working during this shut down period, they are not entitled to be paid wages for this period when they perform no work. There are exceptions to this. For example, if the employer compensates employees under the fluctuating workweek model or if union contracts provide otherwise in unionized workforces. Additionally, some states have “reporting pay” minimums in the event the shut-down occurs after the employees report to work.
On the other hand, exempt employees must be paid their weekly salary for any week in which they perform some work for the employer. Therefore, for shut down periods spanning less than one week, they must be paid their regular weekly salary for this week even though they were not working during a partial week in which the employer was shut down.
2. May an employer permit employees to work remotely?
Employees may be permitted to work from a remote location; however, employees must ensure that non-exempt employees are paid for all hours worked. Therefore, non-exempt employees must still clock in or provide some form of accounting of the hours that they worked, and the employer’s ability to monitor these work hours is limited.
As to exempt employees, if the shut-down period is a full-week, exempt employees would not be entitled to their weekly salary for that full week. If the exempt employee works remotely, that remote work will constitute work performed in that week, thereby entitling the exempt employee for their full weekly salary for that period of time.
3. What happens if the employer’s business is open, but the employees are not able to travel?
Again, under the FLSA, non-exempt employees are entitled to be paid for only the time that they work, regardless of whether the employee do not work because the employer shuts down or the employee cannot travel to work.
Exempt employees are not entitled to be paid for full days in which they perform no work under these circumstances. Therefore, if they come to work late, they cannot be deducted a partial day’s absence; however, if they are absent for a full-day, this time constitutes personal time and they are not entitled to their salary for these full-days.
4. Can an employer permit an employee to use accrued but unused vacation for this period of shut down if they would not otherwise be entitled to their wages?
Yes. An employer may permit an employee to use their accrued but unused vacation time if they are not able to travel to a workplace which is open or unable to work due to a shut down.
5. If an employer does pay an employee for the shut-down period, is that time counted towards the 40 hours for overtime purposes?
No. If an employer choses to pay non-exempt employees for time that they do not work due to shut-down, that time does not constitute “working time” and thus, not counted towards the 40 hours for overtime purposes.
6. What are the protections for employees who need to take time off during this time?
The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job protected leave in a 12-month period for specified family and medical reasons. For example, if an employee is suffering from anxiety due to the hurricane which is corroborated by a medical certification and the employee is eligible for FMLA leave, then the employee is entitled to up to 12-weeks of leave under the FMLA leave.
Additionally, the FMLA also entitles eligible employees to take up to 12-weeks of unpaid, job protected leave in a 12-month period for any “qualifying exigency” arising out of the fact that a covered military member is on active duty, or has been notified of an impending call or order to activate duty, in support of a contingency operation. Additionally, the FMLA also allows eligible employees to take up to 26 weeks of job protected leave in a 12-month period to care for a covered servicemember with a serious injury or illness.
In addition to the FMLA, the Americans With Disabilities Act (ADA) and applicable state law mandates that employers provide reasonable accommodation to otherwise qualified individuals with disabilities. An extended leave of absence can constitute a reasonable accommodation. In the event an employee is suffering from some form of disability due to the hurricane (e.g. depression, anxiety or PTSD) and request a leave of absence, that must be considered even if the employee is not eligible for FMLA leave or if the employee requests a leave beyond the 12-week FMLA leave entitlement.
Moreover, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees who are part of an emergency services organization (such as the National Guard or a Reserve unit). USERRA prohibits discharging, denying initial employment, denying promotion or denying any benefit of employment because of a person’s membership, performance of service or obligation to perform service in uniformed service.
Finally, where there is an illness or injury that results from the hurricane, applicable state law may mandate paid sick leave.
7. How can we show concern?
Employers should engage in regular communication with its employees where possible so that they are aware of the employer’s expectations. Moreover, safety concerns are paramount to all others. Finally, employees having difficulties coping with the aftermath should be encouraged to utilize the employer’s Employee Assistance Program if the employer offers such a program, or to take advantage of similar alternative services that may be covered under the Company’s medical plan.