In response to the COVID-19 pandemic, local governments are scrambling to maintain business continuity and protect their employees, their health, and their wages. Given the understandably cautious response to COVID19, the last thing your valued employees should worry about is their employment benefits, such as payroll, medical coverage, and bereavement time. Federal employer reporting requirements exist as a safeguard to employees in times of distress. As the facilitator of your employees’ employment benefits, it is your job to comply with all requirements as a safeguard to ensure staff members maintain their employment rights when times become devastatingly hard. Ensure you are familiar with the following federal requirements for disaster recovery periods.
During a Disaster
The following federal laws may impact you or your employees during or immediately following a disaster event:
Employee Safety Protections
The Occupational Safety and Health Act (OSHA) dictates that employers must protect employees from unreasonable workplace danger, including an imminent natural phenomenon that threatens employee safety. Employers must consider this guidance, especially when asking essential and non-essential staff to report to work during a disaster event.
Leave of Absence Due to Inclement Weather
What rights apply to employers and employees if there is inclement weather, but business offices do not close? The U.S. Department of Labor (DOL) considers a work absence by an exempt employee due to weather-related transportation difficulties during an extreme weather event an absence for personal reasons if the employee’s office is, in fact, open for businesses. Unless employee contracts allow for flexible work-from-home flexibility under these circumstances, an employer may place exempt employees on leave without pay, or require the use of paid time off for hours in which they failed to report to work. The employer may instead choose to require the exempt employee to make up lost time upon his or her return to work.
On-Call Time During an Emergency
During an emergency, local leaders may require specific staff members, based on role, to stand by and remain on-call for work should the need arise. Such positions may include department of public works (DPW) road crew members, Sheriff’s department or emergency personnel, sanitation crews, or utility workers. Employers may be required to pay employees kept on call for time spent standing by, even if they are not called upon to work.
In a natural disaster, such as a hurricane, tornado, or wildfire, staff may experience periods during regular business hours in which they are waiting to resume work duties due to circumstances beyond their control—such as during a power outage. Employers must pay employees on-site during the waiting time, even if they are not able to perform their job duties.
Fair Labor Standards Act (FLSA): Reduction of Pay and Work Hours
FLSA states that employers must pay nonexempt employees only for hours that they have worked. If an employee is unable to work due to office closures during an event or its recovery period, the employer is not required to pay nonexempt employees. However, exceptions apply to employees who receive fixed salaries for fluctuating workweeks. The employer must pay these staff members their full weekly salary for any week in which any work was performed, even if hours were reduced due to disaster events.
Further, FLSA requires employers to pay exempt employees their full salary if the worksite is closed or unable to reopen due to a disaster for less than a full workweek. Employers may require exempt employees to use allowed leave for this time as well.
After a Disaster
The following Federal laws may impact you or your employees following a local disaster event and during the recovery period:
Employment Leave After a Disaster
During a local disaster, whether it be a mass shooting, illness outbreak, or severe weather event, your employees may need to recover from personal losses and trauma. Such devastation may include the loss of property, health, or a loved one. To ensure employees have the time they need to heal, without putting their job security at risk, the Family and Medical Leave Act (FMLA) offers protections. Those recovering from a health issue related to a natural disaster are entitled to an employment leave of absence under FMLA. Similar protections apply to employees who must care for a sick family member (child, spouse, or parent) who suffered a health issue during the disaster event.
Emergency Services Participation
No one cares for your community quite like the people who call it home, and if an emergency impacts your community, you may have employees stepping up to assist with recovery. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees who are members of an emergency services organization like the National Guard. USERRA ensures that an individual not be denied benefits due to his or her membership or performance of uniformed service. USERRA requires that employees provide their employers with advance notice of military service, employers must understand that in the case of an unexpected event, such as a tornado or active shooter, advance notice may be minimal.
Volunteer Recovery Services
An employer may allow employees who elect to volunteer with disaster relief recovery paid leave. Employers who maintain leave banks may allow employees to donate leave to the leave bank to be used by employees who volunteer for emergency relief services. It should be noted that FLSA does not regulate the use of leave banks.
Special Accommodations for Injured Employees
When a disaster becomes a personal tragedy, an employee’s day-to-day lifestyle may be permanently altered. If an employee suffers an injury during a disaster event that leaves him or her with a permanent physical disability, the Americans with Disabilities Act (ADA) states that physically or emotionally injured employees are entitled to reasonable accommodations by the employer so long as such accommodations do not place undue hardship on the employer’s business. This regulation may require the employer to accommodate the employee with special equipment to perform their normal work functions, such as assistive technology.
Labor Union Compliance
The National Labor Relations Act (NLRA) and OSHA a give employees the right to refuse to work in conditions they believe, in reasonable good faith, are unsafe. Per NLRA, if following a natural disaster, employees believe their workplace has become unsafe, employers may be required to make changes to the workplace environment, in collaboration with union leadership. Refer to your union contracts for specific requirements.
Final Words of Advice
The information in this article is of a general nature. For compliance regulations pertaining to your state, municipality, and any applicable union contracts, contact your administration’s legal department.