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The following article is adapted from an article aimed at Texas employers authored by EBG lawyer David Barron. With hurricane season approaching, it should be of interest to all Florida employers
Introduction
Hurricanes pose unique human resources challenges for employers with operations in Florida and other states in the Southeastern U.S. According to the Congressional Budget Office, Hurricane Katrina alone wiped out as many as 400,000 jobs. The economic effects of hurricanes have long term consequences on businesses in the region. While many employers are working around the clock on recovery efforts, other employers find themselves unable to function for extended periods because of damage or loss of utilities.
Although one can never be fully prepared for such natural disasters, it is important to be aware of the employment laws that may be implicated in such situations. The information contained below may be applicable to other disasters, such as fires, flu epidemics and workplace violence.
Hurricane FAQs
1. Is there any law that protects employees who are absent from work during or after a hurricane?
Unlike some states, such as Texas, Florida does not have a law which prohibits employers from taking action against employees who refuse to work because of an impending hurricane. An analogous situation was presented in Gillyard v. Delta Health Group, Inc., 757 So. 2d 601, 603 (Fla. 5th DCA 2000). There, the employee of a nursing home alleged that she was terminated in violation of the Florida Whistleblower’s Act because of her refusal to report to work; she claimed that reporting to work would have violated the Governor’s mandatory order to evacuate the county due to severe fires. The court held that the governor's executive order was not a law, rule or regulation as defined by the FWA.
2. If a work site is closed because of weather, or unable to reopen because of damage and/or loss of utilities, am I required to pay affected employees?
The FLSA requires employers to pay non-exempt employees only for hours that the employees have actually worked. Therefore, an employer is not required to pay non-exempt employees if the employer is unable to provide work to those employees due to a natural disaster. An exception to this general rule exists where there are employees who receive fixed salaries for fluctuating workweeks. These are non-exempt employees who have agreed to work an unspecified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which any work was performed.
For exempt employees, an employer will be required to pay the employee’s full salary if the worksite is closed or unable to reopen due to inclement weather or other disasters for less than a full workweek. However, an employer may require exempt employees to use allowed leave for this time.
3. Is it lawful to dock the salaries of exempt employees who do not return to work when needed after an emergency or disaster?
The DOL considers an absence caused by transportation difficulties experienced during weather emergencies, if the employer is open for business, as an absence for personal reasons. Under this circumstance, an employer may place an exempt employee on leave without pay (or require the employee to use accrued vacation time) for the full day that he or she fails to report to work. If an employee is absent for one or more full days for personal reasons, the employee’s salaried status will not be affected if deductions are made from a salary for such absences. However, a deduction from salary for less than a full-day’s absence is not permitted.
We recommend caution, however, in docking salaried employees’ pay, and suggest you first consult with legal counsel. Moreover, many employers instead require employees to “make up” lost time after they return to work, which is permissible for exempt employees. This practice is not allowed for non-exempt employees, who must be paid overtime for all hours worked over 40 in a work week.
4. What are other wage and hour pitfalls that employers should be aware of following a hurricane or other natural disaster?
On Call Time: An employee who is required to remain on call at the employer’s premises or close by may be working while “on call” and the employer may be required to pay that employee for all of his time. For example, maintenance workers who remain on premises during a storm to deal with emergency repairs must be compensated, even if they perform no work, if they are not free to leave at any time.
Waiting Time: If an employee is required to wait, that time is compensable. For example, if employees are required to be at work to wait for the power to restart, that is considered time worked.
Volunteer Time: Employees of private not-for-profit organizations are not volunteers if they perform the same services they are regularly employed to perform. They must be compensated for those services. Employers should generally be cautious about having employees “volunteer” to assist the employer during an emergency, if those duties benefit the company and are duties regularly performed by employees.
5. Can employees affected by a hurricane seek protected leave under the Family and Medical Leave Act (“FMLA”)?
Yes, employees affected by a natural disaster are entitled to leave under the FMLA for a serious health condition caused by the disaster. Additionally, employees affected by a natural disaster who must care for a child, spouse, or parent with a serious health condition may also be entitled to leave under the FMLA. Some examples of storm related issues might include absences caused by an employee’s need to care for a family member who requires refrigerated medicine or medical equipment not operating because of a power outage.
6. If a work site or business is damaged and will not reopen, what notice must be provided to affected employees?
The WARN Act, a federal law, imposes notice requirements on employers with 100+ employees for certain plant closings and/or mass layoffs. However, an exception does exist where the closing or layoff is a direct result of a natural disaster. Nonetheless, the employer is required to give as much notice as is practicable. If an employer gives less than 60 days notice, the employer must prove that the conditions for the exception have been met. If such a decision is contemplated, it is advisable to consult with legal counsel about the possible notice requirements to ensure compliance with the WARN Act.
7. Our human resources department has been disrupted, and it may be weeks before things are back to normal—will the government extend any of the customary deadlines governing employer payment for benefits, pension contributions, and other subjects during this recovery effort?
During previous natural disasters, many governmental agencies and entities did extend the deadlines for certain reports and paperwork. Therefore, it is expected that with future natural disasters, the government will provide some deadline extensions, but as with every natural disaster, the government’s response will vary.
8. Employees from other states want to donate leave to affected employees in Florida, is this lawful?
Yes. Employers can allow employees to donate leave to a leave bank and then award the donated leave to the affected employees.
Hurricane and Disaster Preparation Checklist
- Identify and notify those employees you believe should be deemed “emergency services personnel” who will be required to work during a storm or evacuation order. Make arrangements for providing these employees with food and shelter. Make sure to have procedures in place for evacuation of these employees in the event the hurricane or other disaster causes the workplace to become unsafe.
- Identify your “essential employees.” These are employees that you cannot require to be at work during a hurricane or evacuation but you believe are vital to the continued operations of your company. Determine what incentives you can provide these employees to entice them to work during a disaster or to return to work as soon as possible. These incentives can include shelter, hot meals, fuel, as well as arrangements for family members.
- Establish a contingency plan to address the needs of those employees who may be temporarily living in company facilities during a storm or disaster. Ensure you can provide such necessities as gas, food, and shelter to these employees.
- Establish a contingency plan to ensure security of payroll data and the ability to continue payment of wages to your employees if offices are damaged or power is lost.
- Review your existing policies to determine how to distribute paychecks to employees who cannot come to work because of weather or lack of power.
- Establish a communication plan. This will include identifying ways to keep the lines of communication open with your employees even if power is out in the local community. Collect primary and secondary contact sources from your employees. Consider establishing a toll-free phone line where employees can obtain updated information regarding the company’s status during an emergency.
- Review applicable leave policies and procedures to address and allow for disaster-related leave requests, including how such leave will be treated (i.e. paid or unpaid).
- Formulate a team of decision makers who will have authority to make crucial decisions in the midst of the hurricane or other disaster related to other human resources matters. This team should establish a method of communicating with each other during the hurricane.
- Review any existing Employee Assistance Programs and ensure employees know how to utilize these programs during the aftermath. A successful Employee Assistance Program can promote the fast and efficient return of your employees.
- Remember to be sensitive to the needs of your employees who have experienced extensive property damage or personal devastation. Always keep in mind that human life and safety trumps all other business necessities.
That's the title of an excellent Miami Herald article by reporter Cindy Goodman in which I was quoted this morning. Cindy attended a seminar that my partner Kevin Vance and I gave recently at the City Club in Miami. We discussed the pros and cons of telecommuting, and also the employment law issues that employers should be aware of before agreeing, or refusing to agree, to a telecommuting arrangement with an employee or group of employees. Does a request by a disabled employee to work remotely constitute a reasonable accommodation that the employer must agree to to comply with the Americans with Disabilities Act? When is time spent at home waiting for an assignment considered compensable working time under the Fair Labor Standards Act? Is it the employer's responsibility to ensure that the telecommuter is working in a safe environment? Is an employer responsible for an injury that an employee suffers at home while working? What should an employer's telecommuting policy say? These are complex questions that I cannot answer in a blog post, but if you were unable to attend the seminar, and have specific questions, feel free to email me. 
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In Florida, absent an employment contract specifying that an employee will be employed for a certain period of time, the employment relationship is "at-will." This means, generally speaking, that the employee can be fired, or can resign, at any time, for any reason. The employer does not have to have "good cause" to terminate an at-will employee. 
