In the wake of Hurricane Ian, employers are reminded yet again that they should be prepared for any natural disaster as well as the more run of the mill inclement weather. Employers should review their policies now and think about how those policies might need to be amended with the workplace changes that have taken place since the beginning of the COVID-19 pandemic. Any good policy will address, at a minimum, employee safety, a communications plan, and compensation.

Safety

While employers have an obvious interest in keeping their business running, no employer wants to see an employee injured – or worse – because the employee felt obligated to come to work in unsafe conditions. Both from a productivity and culture standpoint, it is not usually in the employer’s best interest to take a hard line with employees who refuse to travel on dangerous roads, or when there are severe service disruptions on public transportation. In addition, some employees may be caretakers of children who will be affected by school or daycare closings. These factors and more must be considered when preparing, communicating and enforcing any natural disaster or inclement weather policy.

Communications Plan

Well before a storm or natural disaster strikes, employers should have in place a plan for communicating with employees, and that plan should consider the possibility of prolonged power outages. Employers should set up an employee notification system, which uses voice, email, text or other technology, in the event of a company closure, or provide a recorded message for employees to access during weather or other emergencies. Employees should be expected to contact their supervisor or another company representative if the office is open but an employee cannot make it to work during inclement weather, and that expectation should be communicated in writing.

Compensation

In a perfect world, every business could afford to continue paying employees their full wages even if the company must close due to hurricanes, blizzards, floods, wildfires or some other natural disaster. The world is not perfect, however, and employers should be aware of their rights and obligations when it comes to paying employees during a weather event.

Under the federal Fair Labor Standards Act (FLSA) employers are required to pay nonexempt employees only for actual hours worked. Employers can require nonexempt employees to use any accrued paid time off or take an unpaid day in the event that they cannot come to work during a weather or other event. If a nonexempt employee has no remaining paid time off, the employer is not required to pay the employee for days that the employee did not work. New Jersey (but not Pennsylvania or Delaware) has adopted a reporting for work law that requires employers to pay employees for at least one (1) hour at their applicable wage rate if they show up or report for duty at the request of their employer, except when the employer has made available to the employee the minimum number of work hours agreed upon by the employer and employee prior to the employee beginning work on the day in question.

By contrast, except in limited circumstances, an employer must pay an exempt employee when he or she works any portion of a workweek, including situations of inclement weather and natural disaster. Employers can require exempt employees to use any accrued paid time off when the office is closed, but, if an exempt employee has no remaining paid time off, the employer must pay the exempt employee for a partial workweek closing. The only instances in which an employer is permitted to not pay exempt employees because of inclement weather or a natural disaster are: when a business closes for an entire week and the employer is certain that the exempt employee performed no work during that week; and when the business remains open during inclement weather and an exempt employee chooses to take the entire day off for personal reasons.

Of course, as we have learned over the last several years, many exempt (and nonexempt) employees can work effectively from home. To the extent they can, therefore, employers should plan for inclement weather or natural disasters that may affect the ability of some employees to come to the office and communicate expectations around, for example, taking laptops home to make sure employees can continue to work even when roads are not passable. Employers still should keep in mind, however, other issues that can affect an employee’s ability to work remotely, such as childcare challenges and power or internet outages.

Additional Issues to Keep in Mind

FMLA: Employers must remember their obligations under the Family and Medical Leave Act (FMLA) to provide leave to those qualifying employees who suffer a serious health condition during any natural disaster or inclement weather. This FMLA requirement also may extend to the employee’s need to care for a spouse, parent, or child suffering a serious health condition or medical emergency during that time. In addition to the federal FMLA, some states have unique family leave requirements that need to be followed as well.

Military Leave: Employees may be members of the National Guard or volunteer responders and may be called up for duty during a natural disaster. Job protections are in place for these employees, and some state laws may be implicated to address unique situations.

If you have questions about a current natural disaster/inclement weather policy, or you are thinking about adopting one in your workplace, you should consult with experienced human resources professionals and/or labor and employment counsel. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney are available for additional consultation.

Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association
800-662-6238